Credit Act 1984 (NSW)
An Act relating to the provision of credit.
This Act may be cited as the Credit Act 1984.
Sections 1 and 2 shall commence on the date of assent to this Act.
Except as provided by subsection (1), the several provisions of this Act shall commence on such day or days as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette.
Except as otherwise expressly provided in or under this Act, this Act applies (notwithstanding anything to the contrary in any other Act or law) to and in respect of a contract of sale, credit contract or mortgage:
(a) if the contract of sale, credit contract or mortgage is in writing and is signed in New South Wales by the buyer, debtor or mortgagor, or
(b) where the contract of sale, credit contract or mortgage is not in writing or is in writing but is not signed by the buyer, debtor or mortgagor in New South Wales or in a recognized State:
(i) in the case of a contract of sale, if the goods or services are, or are to be, delivered or supplied in New South Wales,
(ii) in the case of a credit contract if the credit is, or is to be, provided to the debtor in New South Wales or the debtor has, or is to have, the use or benefit of the credit in New South Wales, or
(iii) in the case of a mortgage, if property subject to the mortgage is at the date of creation of the mortgage situated in New South Wales.
Subject to subsection (3), a provision of this Act that relates to a contract of sale, credit contract, mortgage or contract for the hiring of goods, does not apply to or in relation to a contract of sale, credit contract, mortgage or contract for the hiring of goods, as the case may be, made before the commencement of the provision.
This Act (except sections 58, 59 and 67 (1) (c) and Parts 2, 7, 8 and 9) applies to and in relation to a continuing credit contract made before the commencement of Part 3 that, if it had been made after that commencement, would have been a continuing credit contract to which that Part applies but nothing in this Act applies to or in relation to a billing cycle that commenced before the commencement of that Part.
Where, by reason of subsection (3), this Act (except sections 58, 59 and 67 (1) (c) and Parts 2, 7, 8 and 9) applies to and in relation to a continuing credit contract, the credit provider shall, when he or she first gives a statement of account referred to in section 61 after the commencement of Part 3, give to the debtor a statement in accordance with section 58 and a notice stating the matters required to be stated in a notice under section 59.
Penalty: 10 penalty units.
Except where otherwise expressly provided by this Act, this Act binds the Crown not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.
This Act applies to and in respect of the Crown in any of its capacities to the same extent as if the Crown were, in that capacity, a body corporate.
In this Act, unless the contrary intention appears:
(a) in relation to the period of twelve months after the contract is made—the sum (not exceeding $100 or, where some other amount is prescribed, that other amount) of:
(i) any amount that, under the contract, is payable by the debtor to the credit provider as the fixed fee or other charge for entering into the contract, and
(ii) any amount that, under the contract, is payable by the debtor to the credit provider as the fixed annual fee or other annual charge in respect of that period, or
(b) in relation to any other period of twelve months—any amount (not exceeding $50 or, where some other amount is prescribed, that other amount) that, under the contract, is payable by the debtor to the credit provider as the fixed annual fee or other annual charge in respect of that period.
(a) the minimum credit charge, or
(b) the amount of any credit charge which, under the contract, has accrued at that time calculated as provided in section 11,
whichever is the greater.
(a) it is assumed that all payments by the debtor under the contract will be made on the respective dates on which they fall due and that credit will be provided at the time or times determined under the contract, and
(b) payments by the debtor under the contract are allocated between the amount of the credit charge and the amount financed so that each payment is applied first to the accrued credit charge at the date on which the payment is due and:
(i) if the amount of the payment is greater than the amount of the accrued credit charge on the date on which the payment is made, the remaining amount of the payment is applied to the unpaid balance of the amount financed, or
(ii) if the amount of the payment is less than the amount of the accrued credit charge on the date on which the payment is made, the amount of the difference between the payment and the accrued credit charge is added to the unpaid balance of the amount financed.
(a) in relation to a regulated credit sale contract—the sum of the balance of the cash price required to be stated in accordance with clause 1 (c) of Schedule 2 and the total of the amounts required to be stated in accordance with clause 1 (d) to clause 1 (i) of Schedule 2,
(b) in relation to any other credit sale contract—the sum of the cash price (less the deposit, if any) and amounts payable under the contract by the debtor to the credit provider that, if the contract were a regulated credit sale contract, would be required to be stated in accordance with clause 1 (d) to clause 1 (i) of Schedule 2,
(c) in relation to a regulated loan contract—the sum of the amounts required to be stated in accordance with clause 1 of Schedule 4, or
(d) in relation to any other loan contract—the sum of the amount agreed under the contract to be lent and amounts payable under the contract by the debtor to the credit provider that, if the contract were a regulated loan contract, would be required to be stated in accordance with clause 1 (b) to clause 1 (f) of Schedule 4.
(a) an owners corporation within the meaning of the Strata Schemes Management Act 1996, or
(b) a company owning an interest in land and having a memorandum or articles of association conferring on owners of shares in the company the right to occupy certain parts of a building erected on that land,
all or the majority of which lots or parts, as the case may be, are intended to be occupied as dwellings.
(a) unless the contract is one to which paragraph (b), (c) or (d) applies—means the price payable under the contract for the goods or services,
(b) where, under the contract, credit for the payment for the goods or services is, or is to be, provided by the supplier or by a linked credit provider of the supplier and, at the time at which the contract is made, the goods or services are available for purchase from the supplier for cash—means the lowest price at which at that time the buyer might have bought the goods or services from the supplier for cash,
(c) where, under the contract, credit for the payment for the goods or services is, or is to be, provided by the supplier or by a linked credit provider of the supplier and, at the time at which the contract is made, the goods or services are reasonably available for purchase for cash but are not available for purchase from the supplier for cash—means the price at which at that time the buyer might reasonably have bought goods or services of that kind for cash,
(d) where, under the contract, credit for the payment for the goods or services is, or is to be, provided by the supplier or by a linked credit provider of the supplier and, at the time at which the contract is made, the goods or services are not reasonably available for purchase for cash—means the amount that is:
(i) in the case of a sale of goods, the reasonable value of the goods at that time,
(ii) in the case of a sale of services, the reasonable value at that time of the services (whether or not they have been supplied), or
(iii) in the case of a contract of sale that is a contract of sale of both goods and services, the sum of the reasonable value of the goods at that time and the reasonable value at that time of the services (whether or not they have been supplied), or
(e) where some other price is prescribed in relation to the contract—means that price.
(a) a motor vehicle or trailer within the meaning of the Road Transport (General) Act 2005 constructed or adapted principally for the carriage of goods but does not include a motor vehicle of the kind known as a utility, a station wagon or a panel van, or
(b) a vehicle without motive power of its own and constructed or adapted principally for the carriage of goods and for being drawn by a motor vehicle within the meaning of that Act.
(a) that is paid or payable in respect of the introduction of the debtor to the credit provider and paid or payable by the credit provider or the spouse of the credit provider or, where the credit provider is a body corporate, the credit provider or a related body corporate with the meaning of the Corporations Act 2001 of the Commonwealth, or
(b) that is paid or payable in connection with a contract:
(i) that is connected with the regulated credit sale contract or regulated loan contract, and
(ii) the consideration for which is wholly or partly included within the amount financed.
(a) credit provided to a debtor, for the purposes of a business carried on by the debtor, by:
(i) a documentary letter of credit,
(ii) discounting, or becoming a party to or the holder of, a bill of exchange or other negotiable instrument, or
(iii) becoming surety for a debtor,
(b) credit provided for the purchase of goods for re-supply,
(c) credit provided for the purchase of goods that:
(i) are raw materials, or
(ii) are ordinarily acquired for the purpose of treating or repairing other goods or fixtures on land or of being incorporated in other goods,
for the purposes of transforming them, or incorporating them in other goods:
(iii) in trade or commerce,
(iv) in the course of a process of production or manufacture, or
(v) in the course of repairing or treating other goods or fixtures on land,
(d) credit provided for the purchase of services, where the buyer has contracted to provide those services, or goods and services that include those services, to a third person, or
(e) any transaction prescribed as being a transaction that is not credit within the meaning of this Act.
(a) a credit sale contract,
(b) a loan contract, or
(c) a continuing credit contract.
(a) in relation to a credit contract, the person providing credit under the contract in the course of a business carried on by that person, or
(b) in relation to a proposed credit contract, the person by whom credit is to be provided under the contract in the course of a business carried on by that person.
(a) a charge is made for the provision of credit,
(b) the amount payable by the debtor is not required to be paid within the period of four months after credit is provided under the contract, or
(c) the amount payable by the debtor may be paid by five or more instalments or by a deposit and four or more instalments,
but does not include any contract of a class or description of contracts prescribed as being credit sale contracts that are not credit sale contracts within the meaning of this Act.
(a) in relation to a credit contract, the person to whom credit is provided under the contract, or
(b) in relation to a proposed credit contract, the person to whom credit is to be provided under the contract.
(a) in relation to a regulated credit sale contract or a regulated loan contract, a charge made by a credit provider in accordance with section 72, or
(b) in relation to any other credit contract, an amount payable under the contract by the debtor by reason of the debtor’s failure to fulfil his or her obligations under the contract, other than an amount payable under the contract otherwise than by reason of that failure.
(a) in relation to a regulated credit sale contract or a regulated loan contract, a charge made by a credit provider in respect of the deferral of the payment of an amount in accordance with section 71, or
(b) in relation to any other credit sale contract or loan contract, a charge made by a credit provider in respect of the deferral of the payment of an amount payable under the contract by the debtor.
(a) in relation to a credit sale contract relating to goods—an amount that, under the contract, was paid or payable by the buyer to the supplier on or before the delivery of the goods or, where the delivery is not completed on one day, on or before the commencement of the delivery,
(b) in relation to a credit sale contract relating to services—an amount that, under the contract, was paid or payable by the buyer to the supplier on or before the commencement of the supply of the services, or
(c) in relation to a credit sale contract relating to goods and services—an amount that, under the contract, was paid or payable by the buyer to the supplier on or before the commencement of the delivery or supply of the goods and services,
and, where there is a trade-in allowance, includes the trade-in allowance.
(a) in relation to a regulated contract—an amount that, subject to section 76, the debtor is liable to pay to the credit provider in relation to the exercise of a right under the contract arising from the default of the debtor,
(b) in relation to a regulated mortgage—an amount that, subject to section 93, the mortgagor is liable to pay to the mortgagee in relation to the exercise of a right under the mortgage arising from the default of the mortgagor, or
(c) in relation to any other credit contract or mortgage—an amount expended or the amount of a liability incurred by the credit provider or mortgagee under the contract or mortgage to remedy a default of the debtor or mortgagor or in the exercise of rights of the credit provider or mortgagee under the contract or mortgage arising by reason of the default.
(a) on the assumption that all amounts payable under the contract are paid on the respective dates on which, under the contract, they are required to be paid, or
(b) in accordance with an applicable method prescribed for the purposes of calculating estimated credit charges.
(a) a harvester, binder, tractor, plough or other agricultural implement, or
(b) any other goods of a class commonly used for the purposes of a farming undertaking that are prescribed as being farm machinery for the purposes of this Act,
where the goods are acquired for the purposes of a farming undertaking.
(a) any agricultural, apicultural, dairy farming, horticultural, orcharding, pastoral, poultry keeping, viticultural or other business involving the cultivation of the soil, the gathering of crops or the rearing of livestock,
(b) the business of taking fish, crustacea, oysters or any other marine, estuarine or fresh-water animal life,
(c) the cutting of timber for sale, and
(d) any class of business prescribed as a farming undertaking.
(a) all chattels personal other than things in action and money,
(b) fixtures severable from the realty, and
(c) any present or future product of a farming undertaking, including any agricultural or horticultural produce, wool and the increase or progeny of stock,
but does not include any goods of a class or description prescribed as being goods that are not goods within the meaning of this Act.
(a) a person who is the supplier, or spouse of the supplier, of goods or services to which the contract or mortgage relates or, where the supplier is a body corporate, a person who is a director or officer of the body corporate or is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth or a director or officer of such a related corporation or spouse of such a director or officer, or
(b) a person who enters into a contract of guarantee or a contract of indemnity:
(i) in respect of the obligations under a credit contract of a person who deals in goods or services of the kind to which the contract relates, or
(ii) in respect of the obligations of a debtor under a loan contract made for the purposes of the acquisition of goods of a kind in which the debtor deals.
(a) with whom the supplier has a trade or tie agreement,
(b) to whom the supplier, by arrangement with the credit provider, regularly refers persons for the purpose of obtaining credit,
(c) whose forms of contract or forms of application or offers for credit are, by arrangement with the credit provider, made available to persons by the supplier, or
(d) with whom the supplier has an agreement or arrangement, whether formal or informal, under which contracts or applications or offers for credit from the credit provider may be signed by persons at the premises of the supplier.
(a) by paying an amount to or in accordance with the instructions of that other person,
(b) by applying an amount in satisfaction or reduction of an amount owed to the person by that other person,
(c) by varying the terms of a contract under which moneys owed to the person by that other person are payable,
(d) by deferring an obligation of that other person to pay an amount to the person,
(e) by taking from that other person a bill of exchange or other negotiable instrument on which that other person (whether alone or with another person or other persons) is liable as drawer, acceptor or endorser,
but does not include any contract of a class or description of contracts prescribed as being loan contracts that are not loan contracts within the meaning of this Act.
(a) reserved in or over an interest in goods or other property, or
(b) created or otherwise arising in or over an interest in goods or other property under a bill of sale, mortgage, charge, lien, pledge, trust or power,
by way of security for the payment of a debt or other pecuniary obligation or the performance of any other obligation but does not include an interest or a power reserved, created or otherwise arising under a contract for the hiring of goods that is not by section 13 deemed to be a credit sale contract.
(a) a contract for or involving:
(i) the performance of work (including work of a professional nature), or
(ii) the provision of, or the use or enjoyment of, facilities for amusement, entertainment, recreation or instruction,
(b) a contract of insurance (including life assurance), or
(c) a contract under which one person grants or confers, or purports to grant or confer, a franchise or other right, benefit or privilege to one or more other persons in consideration of the investment by that other person, or those other persons, of money and the performance by that or those other persons of work associated with that investment,
whether the contract is express or implied and, if it is express, whether it is oral or in writing and whether the services are supplied to order or by making them available to potential users, but does not include:
(d) the provision of credit,
(e) any rights or benefits of a prescribed class or description that are prescribed as being rights or benefits that are not services within the meaning of this Act, or
(f) any rights or benefits that are, or are to be, supplied under a contract of a prescribed class or description and are prescribed as being rights or benefits that are not services within the meaning of this Act.
“De facto partner” is defined in section 21C of the Interpretation Act 1987.
(a) in relation to insurance charges (other than prescribed insurance charges) included in the amount financed under a regulated contract, the sum of:
(i) the amount of premium paid in respect of a period of the insurance contract not yet commenced, and
(ii) 90 per centum of the proportion of the amount of the premium for insurance paid in respect of the current period of the insurance contract attributable to the unexpired portion of that period consisting of whole months,
(b) in relation to prescribed insurance charges included in the amount financed under a regulated contract—the amount ascertained in the prescribed manner, and
(c) in relation to maintenance charges included in the amount financed under a regulated contract in respect of maintenance of goods—the amount derived by multiplying the amount of maintenance charges by the number of whole months in the unexpired portion of the period for which maintenance is agreed to be provided and dividing the product so obtained by the number of whole months for which maintenance is agreed to be provided.
(a) in relation to a contract of sale, credit sale contract or contract for the hiring of goods, means a person who supplies goods or services, or
(b) in relation to a continuing credit contract, means a person who supplies goods or services or cash.
(a) in relation to goods, supply (including re-supply within the meaning of subsection (2)) by way of sale or exchange, or
(b) in relation to services, provide, grant or confer.
(a) the supply to the supplier of goods or services in which the supplier deals,
(b) the business of supplying goods or services carried on by the supplier, or
(c) the provision of credit to purchasers in respect of the payment for goods or services supplied by the supplier.
In this Act, unless the contrary intention appears:
(a) a reference to goods or services includes a reference to goods and services, and
(b) a reference to the re-supply of goods bought from a person includes a reference to:
(i) a supply of the goods to another person in an altered form or condition, and
(ii) a supply to another person of goods in which the first-mentioned goods have been incorporated.
In this Act, unless the contrary intention appears, where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
Where a regulation made for the purposes of this section:
(a) prescribes an amount other than $20,000 as the monetary limit for the purposes of this Act, a reference in this Act (including this section) to $20,000 shall be construed as a reference to the amount so prescribed, or
(b) prescribes an annual percentage rate other than 14 per centum as the annual percentage rate for the purposes of this Act, a reference in this Act (including this section) to a rate of 14 per centum shall be construed as a reference to the annual percentage rate so prescribed.
Notes included in this Act do not form part of this Act.
In this Act, except in so far as the context or subject-matter otherwise indicates or requires, a reference to a court in relation to any contract or other matter:
(a) where proceedings in relation to the contract or matter have been instituted in, or are before, a court—is a reference to that court,
(b) where proceedings in relation to that contract or matter have been instituted in, or are before, the Tribunal—is a reference to the Tribunal, or
(c) in any other case is a reference to:
(i) the Tribunal, or
(ii) the Local Court.
Where a court and the Tribunal each have jurisdiction to determine the same matter, proceedings to determine the matter may be instituted before the court or the Tribunal but not before both.
Where proceedings are instituted in, or are before, a court in a matter for the determination of which the Tribunal and the court each have jurisdiction, the proceedings shall:
(a) if all the parties to the proceedings so agree, or
(b) if the court of its own motion or on the application of a party so directs,
be transferred to the Tribunal in accordance with the rules of the Tribunal and shall continue before the Tribunal as if they had been instituted there.
Where proceedings are instituted in, or are before, the Tribunal in a matter for the determination of which the Tribunal and a court each have jurisdiction, the proceedings shall:
(a) if all the parties so agree, or
(b) if the Tribunal of its own motion or on the application of a party so directs,
be transferred to the court in accordance with rules of the court or, if the court is not empowered to make those rules, as prescribed, and shall continue before the court as if they had been instituted there.
(Repealed)
Where it is alleged in any proceeding under this Act or in any other proceeding in respect of a matter arising under this Act that:
(a) a credit sale contract or a loan contract is a credit sale contract or loan contract to which Part 3 applies, or
(b) a continuing credit contract is a continuing credit contract to which Part 3 applies,
it shall be presumed, unless the contrary is established, that Part 3 applies to the credit sale contract or loan contract or that Part 3 applies to the continuing credit contract.
This Act applies to a person to whom the rights and obligations of:
(a) a credit provider under a credit contract,
(b) a debtor under a credit contract,
(c) a guarantor under a contract of guarantee,
(d) a credit provider under a contract of guarantee,
(e) a mortgagee, or
(f) a mortgagor,
have been assigned or transferred or have passed by operation of law in the same manner as this Act applies to the person by whom the rights and obligations were assigned or transferred or from whom the rights and obligations have passed by operation of law.
Nothing in subsection (1) operates to confer any rights under this Act on an assignee of a credit provider or mortgagee where the assignment is in contravention of this Act.
Subsection (1) does not apply where the rights and obligations referred to in subsection (1) (b), (c) or (f) are assigned or transferred, or pass by operation of law, to a body corporate.
A reference in this Act to a contract or agreement in respect of the payment by a debtor for services supplied by another person does not include a reference to a contract or agreement that is solely a contract of service that creates the relationship of master and servant between the debtor and that other person or by reason of which that other person would be a worker within the meaning of the Workers’ Compensation Act 1926.
For the purposes of this Act, unless the contrary intention appears, a reference to the annual percentage rate:
(a) in relation to a credit sale contract or a loan contract in respect of which the annual percentage rate has not been disclosed to the debtor or has been so disclosed otherwise than in accordance with section 38, is a reference to the lowest percentage rate per annum that can be determined in accordance with that section in relation to the contract,
(b) in relation to a credit sale contract or loan contract under which the annual percentage rate has been disclosed in accordance with section 38, is a reference to the rate disclosed, and
(c) in relation to a continuing credit contract, is a reference to the annual percentage rate within the meaning of section 55.
For the purposes of this Act, a reference to a credit charge:
(a) in relation to a credit sale contract or a loan contract, is a reference to the amount by which the amount payable under the contract by the debtor to the credit provider or a person on the credit provider’s behalf (not including amounts of deferral charges, default charges or enforcement expenses) exceeds the amount financed, and
(b) in relation to a billing cycle of a continuing credit contract, is a reference to a credit charge within the meaning of section 54.
For the purposes of the definition of
(a) by adding together the amounts ascertained by applying the daily percentage rate to the unpaid daily balances (being daily balances before that time):
(i) in the case of a credit sale contract—of the amount financed, or
(ii) in the case of a loan contract—of the amount financed other than any part of the amount agreed under the contract to be lent that has not been lent at that time,
(b) where Schedule 1 applies to the credit sale contract or loan contract—in accordance with the formula set out in that Schedule, or
(c) where an applicable method is prescribed for the purposes of this subsection—in accordance with that method.
In calculating the amount of a credit charge which has accrued under a credit sale contract or a loan contract, the credit provider may, if he or she so determines, apply a percentage rate per annum that is lower than the annual percentage rate disclosed under the contract.
For the purposes of this Act, a loan contract is a tied loan contract where the credit provider enters into the loan contract with a person who is a buyer of goods or services supplied by a supplier and:
(a) the credit provider knows or ought reasonably to know that the buyer enters into the loan contract wholly or partly for the purposes of payment for the goods or services, and
(b) at the time the loan contract is entered into the credit provider is a linked credit provider of the supplier.
For the purposes of this Act, a continuing credit contract is a tied continuing credit contract where the credit provider provides credit under the continuing credit contract in respect of the payment by the debtor for goods or services supplied by a supplier in relation to whom the credit provider is a linked credit provider.
A contract for the hiring of goods shall be deemed to be a credit sale contract if:
(a) the cash price of the goods at the time when the contract for the hiring is made is not more than $20,000 or the goods are, or include, a commercial vehicle or farm machinery in relation to which the cash price is more than $20,000, and
(b) under the contract the person to whom the goods are hired has a right, obligation or option to purchase the goods.
A contract for the hiring of goods shall be deemed to be a credit sale contract if the cash price of the goods at the time the contract is made is not more than $20,000 or the goods are a commercial vehicle or farm machinery and:
(a) the contract provides, or it is reasonably likely having regard to the nature of the goods that the goods are, or are to be, affixed to land or to other goods and the goods are not, or when so affixed would not be, reasonably capable of being re-delivered to the supplier,
(b) before the contract is made, the supplier:
(i) acts in such a manner that the person to whom the goods are hired ought reasonably to infer that the supplier is willing, whether during or within a reasonable time after the period during which the contract is in force, to negotiate the sale to that person of the goods or of goods of a value and description similar to the value and description of the goods to which the contract relates (being a value and description as at the time the contract is made), and
(ii) expects, or in the circumstances ought reasonably to expect, that the person to whom the goods are hired will negotiate the purchase by that person of the goods or of goods of such a similar value and description, or
(c) before the contract is made, it is agreed that the person to whom the goods are hired may continue the contract for a nominal consideration for a period that exceeds, or for two or more periods that together exceed, the period of two years after the expiration of the original term of the contract for the hiring.
Where a contract for the hiring of goods is by this section deemed to be a credit sale contract:
(a) the person from whom the goods are hired is the credit provider under the credit sale contract,
(b) the person to whom the goods are hired is the debtor under the credit sale contract,
(c) the cash price of the goods for the purposes of the credit sale contract is the cash price in relation to the contract for the hiring,
(d) the instalments payable under the contract for the hiring are instalments payable under the credit sale contract,
(e) the property of the supplier in the goods passes under the contract to the person to whom the goods are hired upon delivery of the goods or the making of the contract whichever last occurs,
(f) a mortgage containing the prescribed terms and conditions shall be deemed to have been entered into in writing between the person to whom the goods are hired 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.
Subsection (2) does not apply to a contract for the hiring of goods that are or might reasonably be expected to be used by the person to whom they are hired for the purpose of a business carried on by that person or by that person and another person or other persons, where the whole or the greater part of the amount payable under the contract is, or might reasonably be expected to be, a loss or outgoing necessarily incurred in carrying on the business.
In this section:
(a) a reference to a contract for the hiring of goods does not include:
(i) a reference to a contract for the hiring of goods to a body corporate, or
(ii) a reference to a contract for the hiring of goods to the extent that the financial accommodation provided in relation to the goods is not credit within the meaning of this Act, and
(b) cash price , in relation to a contract for the hiring of goods:(i) where at the time the contract is made the goods are available for purchase for cash from the person from whom the goods are hired—means the lowest price at which the person to whom the goods are hired might have bought the goods from the first-mentioned person for cash,
(ii) where at the time the contract is made the goods are reasonably available for purchase for cash but are not reasonably available for purchase for cash from the person from whom the goods are hired—means the price at which, at that time, the person to whom the goods are hired might reasonably have bought goods of that kind for cash, or
(iii) where at the time the contract is made the goods are not reasonably available for purchase for cash—means the amount that is the reasonable value of the goods at that time.
For the purposes of this Act, a reference to a credit sale contract does not include:
(a) a reference to a contract of sale of goods or services in respect of the payment for which credit is, or is to be, provided under a continuing credit contract, or
(b) a reference to a lay-by sale within the meaning of subsection (2).
A reference in subsection (1) to a lay-by sale is a reference to a sale of goods, or an agreement to sell goods, under conditions, express or implied, which provide that:
(a) any of the goods sold or agreed to be sold will not be delivered to the purchaser until the purchase price is paid for the goods to be delivered, whether or not any charge is expressed to be payable for storage of the goods, and
(b) the purchase price or, where a deposit is paid, the balance of the purchase price:
(i) is to be payable by instalments (whether the number of instalments or the amount of all or any of the instalments is fixed by those conditions or is left at the option of the purchaser) payable over a fixed or ascertainable period, or
(ii) is to be paid at the expiration of a fixed or ascertainable period with an option, express or implied, for the purchaser to make payments in respect of the purchase price during that period.
For the purposes of this Act, a reference to credit in relation to a loan contract does not include a reference to credit provided under a credit sale contract or a continuing credit contract.
In this Act, a reference to carrying on a business of providing credit includes a reference to carrying on the provision of credit in the course of or as part of or as incidental to or in connection with the carrying on of another business.
The Governor:
(a) if satisfied that in another State or a Territory the law for the regulation of the provision of credit is such as to enable reciprocal arrangements to be made with this State in relation to the provision of credit may, by order published in the Government Gazette declare that other State or that Territory to be a recognized State, and
(b) may, by order so published, vary or revoke a declaration under paragraph (a).
The provisions of Parts 3, 4, 5, 6, 7 and 8 do not apply to or with respect to a regulated contract where the credit provider is a society registered under the Co-operation Act 1923 or a society within the meaning of the Financial Institutions (NSW) Code.
The provisions of Parts 3, 4, 5, 6, 7 and 8 do not apply to or with respect to the provision of credit by a bank or a pastoral finance company where the credit is provided by way of overdraft or otherwise than by way of a credit sale contract, continuing credit contract or term loan.
The provisions of Parts 3, 4, 5, 6, 7 and 8 do not apply to or with respect to a regulated contract where the credit provider is a credit union within the meaning of the law of another State or of a Territory that corresponds to the Financial Institutions (NSW) Code.
The Governor may, by order published in the Government Gazette, declare that the provisions of this Act, or such of those provisions as are specified in the order:
(a) do not have effect in relation to a specified person or to a specified class of persons,
(b) have effect in relation to a specified person or to a specified class of persons to such extent as is specified,
(c) do not have effect in relation to a specified transaction or matter or class of transactions or matters,
(d) have effect in relation to a specified transaction or matter or class of transactions or matters to such extent as is specified,
(e) do not have effect in relation to a specified transaction or class of transactions entered into by a specified person or specified class of persons or in relation to specified associated matters, or
(f) have effect in relation to a specified transaction or class of transactions entered into by a specified person or specified class of persons, or in relation to specified associated matters, to such extent as is specified.
For orders under this subsection see the Historical notes at the end of this Act.
An order made under subsection (1):
(a) may specify the period during which the order shall remain in force, or
(b) may provide that its operation is subject to such terms and conditions as are specified in the order.
The Governor may, by order published in the Government Gazette, revoke or vary an order made under this section.
An order in force under this section, including an order that is varied under this section, has effect according to its tenor.
A person to whom an order under this section applies, including an order that is varied under this section, shall comply with the terms and conditions (if any) to which the operation of the order is subject.
Penalty: 50 penalty units.
Subject to subsection (2), this Act does not apply to a credit contract made on or after the commencement of Schedule 1.2 to the Consumer Credit (New South Wales) Act 1995.
This Act applies to:
(a) a credit contract, other than a continuing credit contract, and to a mortgage or guarantee relating to such a credit contract:
(i) made on or after the commencement of Schedule 1.2 to the Consumer Credit (New South Wales) Act 1995 if the offer to enter into it was made before that commencement, and
(ii) to which this Act would have applied if the credit contract had been made before that commencement, and
(b) a credit contract, other than a continuing credit contract, and to a mortgage or guarantee relating to such a credit contract made on or after that commencement but not later than one month after that commencement if:
(i) the credit contract does not comply with the Consumer Credit (New South Wales) Code, and
(ii) had the credit contract been made before that commencement, this Act would have applied to it and it would have complied with this Act.
Except as otherwise provided by this section, this Act continues to apply:
(a) to a continuing credit contract entered into before the commencement of Schedule 1.2 to the Consumer Credit (New South Wales) Act 1995, but only in respect of anything done or omitted to be done before that commencement, and
(b) to a credit contract of any other kind entered into before that commencement in respect of anything done or omitted to be done, whether before or after that commencement, and
(c) to a mortgage or guarantee relating to a continuing contract referred to in paragraph (a), but only in respect of anything done or omitted to be done before that commencement, and
(d) to a mortgage or guarantee relating to a credit contract referred to in paragraph (b) in respect of anything done or omitted to be done, whether before or after that commencement.
If the credit provider under a contract to which this Act continues to apply acts in accordance with a provision of section 34, 35, 66 to 69, 78 to 99, 163, 171, 172 or 173 of the Consumer Credit (New South Wales) Code, the credit provider is taken to have acted in accordance with the corresponding provision of this Act.
Despite anything to the contrary in subsection (2), section 112 (1) (b) continues to apply in respect of goods subject to a regulated mortgage.
In this Part, a reference to a contract of sale is a reference to:
(a) a contract of sale of goods or services where the cash price in relation to the sale is not more than $20,000,
(b) a contract of sale of goods, being a commercial vehicle or farm machinery, or
(c) a contract of sale:
(i) of goods, being a commercial vehicle or farm machinery in relation to which the cash price is more than $20,000, and
(ii) of other goods or services.
For the purposes of this Part, a reference to a buyer or a person who buys or proposes to buy goods or services does not include a reference to a body corporate.
Where a buyer, before entering into a contract of sale of goods or services, makes it known to the supplier that he or she requires credit to be provided in respect of the payment for the goods or services and the credit is not provided by the supplier, the buyer, if he or she takes reasonable steps to obtain the credit but does not obtain the credit, may within a reasonable period after the contract is made, by notice in writing given to the supplier, rescind the contract.
Where a buyer has purported to rescind a contract of sale as referred to in subsection (1), a court may, on the application of the supplier or the buyer, declare whether or not the purported rescission was valid and, if it declares that it was valid:
(a) may, on the application of the supplier or the buyer, where there is a dispute as to the return of the goods to the supplier, make an order relating to the return of the goods, and
(b) may, where the contract of sale included terms relating to the compensation of the supplier for loss suffered by reason of the delivery of the goods to the buyer, make an order relating to the payment of compensation.
A supplier shall not require a person who, under a contract of sale, buys or proposes to buy goods or services supplied by the supplier to obtain credit from a specified person in respect of payment for the goods or services.
Penalty: 20 penalty units.
Where a regulated credit sale contract is rescinded or discharged (whether under this Act or any other Act or law), any mortgage or guarantee that relates to the contract is also discharged to the extent that it secures or guarantees the payment of a debt or other pecuniary obligation, or the performance of any other obligation, under the regulated credit sale contract.
Where a contract of sale is rescinded or discharged (whether under this Act or any other Act or law):
(a) any regulated loan contract relating to the contract of sale and made by the buyer with the supplier is also discharged to the extent that it provides for the payment of a debt or other pecuniary obligation, or the performance of any other obligation, relating to the contract of sale, and
(b) any mortgage or guarantee relating to the regulated loan contract to the extent that the contract is discharged is also discharged to the extent that it secures or guarantees the payment of a debt or other pecuniary obligation, or the performance of any other obligation, under the regulated loan contract.
Where a contract of sale is rescinded or discharged (whether under this Act or any other Act or law) and:
(a) in respect of the contract of sale, there is a regulated continuing credit contract made by the buyer with the supplier, and
(b) in relation to the regulated continuing credit contract there is a regulated mortgage or a guarantee,
that mortgage or guarantee is, at the same time as the contract of sale is rescinded or discharged, discharged to the extent that it secures or guarantees the payment of the amount entered in the account of the debtor kept by the credit provider under the contract in relation to the contract of sale and the amount (if any) of credit charges so entered and attributable to the contract of sale.
Where a buyer who has entered into a tied loan contract or tied continuing credit contract with a linked credit provider of a supplier for the provision of credit in respect of the payment by the buyer for goods or services supplied by the supplier under a contract of sale is entitled to claim damages against or recover a sum of money from the supplier for misrepresentation, breach of contract or failure of consideration in relation to the contract of sale, the supplier and linked credit provider are, subject to this section, jointly and severally liable to the buyer for the damages or sum of money.
It is a defence to proceedings arising under subsection (1) against a linked credit provider of a supplier if the linked credit provider proves:
(a) that the credit provided by him or her to the buyer was provided as a result of an approach by the buyer to the credit provider that was not induced by the supplier,
(b) where the proceedings relate to a contract of sale with respect to which a tied loan contract applies, that:
(i) after due inquiry before he or she became such a linked credit provider, he or she was satisfied that the supplier was of good reputation in respect of financial standing and ethical standards of trading,
(ii) since becoming such a linked credit provider, but before the tied loan contract was entered into, he or she has not had cause to suspect, and had not suspected, that the buyer might be entitled to claim damages against, or recover a sum of money from, the supplier for misrepresentation, breach of contract or failure of consideration as referred to in subsection (1), and
(iii) since becoming such a linked credit provider, but before the tied loan contract was entered into, he or she had not had any cause to suspect, and had not suspected, that the supplier might be unable to meet his or her liabilities as and when they fell due, or
(c) where the proceedings relate to a contract of sale with respect to which a tied continuing credit contract entered into by the linked credit provider under an agreement of the kind referred to in section 48 (2) (a) (ii) applies, that, having regard to:
(i) the nature and volume of business carried on by the linked credit provider, and
(ii) such other matters as appear to be relevant in the circumstances of the case,
the linked credit provider, before becoming aware of the contract of sale or of proposals for the making of the contract of sale (whichever the linked credit provider first became aware of), did not suspect, and could not reasonably have been expected to suspect, that a person entering into such a contract with the supplier might be entitled to claim damages against, or recover a sum of money from, the supplier for misrepresentation, breach of contract or failure of consideration as referred to in subsection (1).
Subject to subsection (4), a buyer may in any proceedings set up the liability of a linked credit provider for damages or a sum of money under subsection (1) in diminution or extinction of the buyer’s liability upon any claim for damages or a sum of money made by the linked credit provider against the buyer in the proceedings.
Subject to subsection (5), a buyer may not:
(a) bring proceedings for damages or to recover a sum of money from a linked credit provider, or
(b) where proceedings are brought against the buyer by a linked credit provider, make a cross-claim or exercise a right referred to in subsection (3) against the linked credit provider,
in respect of a liability for which, by reason of this section, a supplier and a linked credit provider are jointly and severally liable unless the buyer brings the proceedings against the supplier and linked credit provider jointly or, in the case of a cross-claim or right referred to in subsection (3), claims in the proceedings against the supplier in respect of the liability.
Subsections (4) and (8) (a) do not apply where:
(a) the supplier:
(i) is a bankrupt or a person whose affairs are being dealt with under Part X of the Bankruptcy Act 1966 of the Commonwealth as amended and in force for the time being,
(ii) being a body corporate, has been dissolved or has commenced to be wound up, or
(iii) being a natural person, has died,
(b) the court believes on reasonable grounds that it is not reasonably likely that any part of a judgment obtained against the supplier would be satisfied and has on the application of the buyer declared that subsections (4) and (8) (a) do not apply in that case, or
(c) the buyer satisfies the court that he or she has made reasonable efforts to locate the supplier but has been unable to do so and the court declares that subsections (4) and (8) (a) do not apply in that case.
A reference in subsection (5) to the commencement of winding up is a reference to commencement of winding up as determined under the law relating to companies in the place where the body corporate is being wound up.
The liability of a linked credit provider to a buyer for damages or a sum of money in respect of a contract of sale referred to in subsection (1) does not exceed the sum of:
(a) the amount financed under the tied loan contract or tied continuing credit contract in relation to the contract of sale,
(b) the amount of interest (if any) or damages in the nature of interest allowed or awarded against the linked credit provider by the court, and
(c) the amount of costs (if any) awarded by the court against the linked credit provider or supplier or both.
Where in proceedings in respect of the liability arising under subsection (1) judgment is given against a supplier and a linked credit provider, the judgment:
(a) shall not be enforced against the linked credit provider unless a written demand made on the supplier for satisfaction of the judgment has remained unsatisfied for not less than 30 days, and
(b) may be enforced against the linked credit provider only to the extent of:
(i) the amount calculated in accordance with subsection (7), or
(ii) so much of the judgment debt as has not been satisfied by the supplier,
whichever is the lesser.
Where, in proceedings in respect of the liability arising under subsection (1), a right referred to in subsection (3) is established against a linked credit provider, the buyer:
(a) shall not receive the benefit of the right unless judgment has been given against the supplier and linked credit provider, a written demand has been made on the supplier for satisfaction of the judgment and the demand has remained unsatisfied for not less than 30 days, and
(b) may receive the benefit only to the extent of:
(i) the amount calculated in accordance with subsection (7), or
(ii) so much of the judgment debt as has not been satisfied by the supplier,
whichever is the lesser.
Unless the linked credit provider and supplier otherwise agree, the supplier is liable to the linked credit provider for the amount of a loss suffered by the linked credit provider, being an amount not exceeding the maximum amount of his or her liability under subsection (7) and, unless the court otherwise determines, the amount of costs (if any) reasonably incurred by him or her in defending the proceedings by reason of which the liability was incurred.
Notwithstanding anything to the contrary in any other Act, where in proceedings in respect of the liability arising under subsection (1) judgment is given against a supplier and a linked credit provider, or against a linked credit provider, for damages or a sum of money, the court shall upon application by the buyer, unless good cause is shown to the contrary, allow or award interest to the buyer against the supplier and linked credit provider or against the linked credit provider, as the case may be, upon the whole or part of the damages or sum of money:
(a) at the percentage rate per annum that is the annual percentage rate under the tied loan contract or tied continuing credit contract, or
(b) at 8 per centum per annum or, where some other percentage rate per annum is prescribed, that other rate,
whichever is the greater, from the time when the buyer became entitled to recover the damages or sum of money until the date on which the judgment is given.
In determining whether good cause is shown against allowing or awarding interest under subsection (11) on the whole or part of the damages or sum of money, the court shall take into account any payment made into court by the supplier or linked credit provider, as the case may be.
Where a judgment in respect of a liability arising under subsection (1) in relation to a contract of sale is enforced against a linked credit provider, the linked credit provider is subrogated to the extent of the judgment so enforced to any rights that the buyer would, but for the judgment, have had against any person in respect of the loss or damage suffered by the buyer as a result of the misrepresentation, breach of contract or failure of consideration in relation to the contract of sale from which the liability arose.
In this section, a reference to a court does not include a reference to the Tribunal.
Subject to section 27, where a contract of sale is rescinded or discharged (whether under this Act or any other Act or law) and there is a tied loan contract made with the buyer by a linked credit provider of the supplier under the contract of sale, at the same time as the contract of sale is rescinded or discharged:
(a) the tied loan contract is discharged to the extent that it was entered into for the purposes of the payment for the goods or services supplied under the contract of sale, and
(b) any mortgage relating to the tied loan contract is discharged to the extent that it secures the payment of a debt or other pecuniary obligation or performance of any other obligation under the tied loan contract.
Subsection (1) does not apply where the credit is provided by a linked credit provider of a supplier to a buyer as a result of an approach by the buyer to the credit provider which was not induced by the supplier.
Where, by reason of subsection (1), a tied loan contract is discharged when a contract of sale is rescinded or discharged:
(a) the credit provider is liable to the buyer for the amount (if any) paid by the buyer to the credit provider under the tied loan contract to the extent that it is discharged,
(b) the supplier is liable to the credit provider for:
(i) the amount (if any) paid under the tied loan contract, to the extent that it is discharged, by the credit provider to the supplier,
(ii) the amount paid under the tied loan contract, to the extent that it is discharged, by the credit provider to the buyer and paid by the buyer to the supplier, and
(iii) the amount of the loss (if any) suffered by the credit provider by reason of the discharge of the tied loan contract, being an amount not exceeding the amount of the accrued credit charge under the tied loan contract, and
(c) the buyer is liable to the credit provider for the amount (if any) paid under the tied loan contract, to the extent that it is discharged, to the buyer by the credit provider, other than amounts paid to the buyer and paid by the buyer to the supplier,
and, where the contract of sale is a contract of sale of goods or services:
(d) if the goods are in the possession of the buyer:
(i) where, before the rescission or discharge of the contract of sale, there was not a mortgage relating to the tied loan contract, the buyer shall deliver the goods to the supplier, or
(ii) where, before the rescission or discharge of the contract of sale, there was a mortgage relating to the tied loan contract to the extent that it is discharged, the buyer shall deliver the goods to the credit provider, and
(e) if the goods are in the possession of the credit provider and no amounts are owed to the credit provider under paragraph (b), the credit provider shall deliver the goods to the supplier.
Where, under subsection (3) (d), goods are delivered to the credit provider, the credit provider is entitled to possession of the goods as against the supplier until the credit provider has been paid the amount for which the supplier is liable to the credit provider under subsection (3) (b).
Subject to section 27, where a contract of sale is rescinded or discharged (whether under this Act or any other Act or law) and there is a tied continuing credit contract made with the buyer by a linked credit provider of the supplier under the contract of sale, any mortgage relating to the tied continuing credit contract is discharged to the extent that it secures payment of the amount entered in relation to the contract of sale in an account of the debtor kept by the credit provider under the tied continuing credit contract and the amount (if any) of the credit charge so entered and attributable to the contract of sale and:
(a) the credit provider shall enter in that account an amount by way of refund to the debtor equal to the first-mentioned amount, and
(b) the supplier is liable to the credit provider for an amount equal to the first-mentioned amount,
and, where the contract of sale is a contract of sale of goods or services:
(c) if the goods are in the possession of the buyer:
(i) where, before the rescission or discharge of the contract of sale, the goods were not subject to a mortgage relating to the tied continuing credit contract, the buyer shall deliver the goods to the supplier, or
(ii) where, before the rescission or discharge of the contract of sale, the goods were subject to a mortgage relating to the tied continuing credit contract, the buyer shall deliver the goods to the credit provider, and
(d) if the goods are in the possession of the credit provider and no amounts are owed to the credit provider under paragraph (b), the credit provider shall deliver the goods to the supplier.
Where, under subsection (1) (c), goods are delivered to the credit provider, the credit provider is entitled to possession of the goods as against the supplier until the credit provider has been paid the amount for which the supplier is liable to the credit provider under subsection (1) (b).
Subsection (1) does not apply where the credit is provided by a linked credit provider of a supplier to a buyer as a result of an approach by the buyer to the credit provider which was not induced by the supplier.
The provisions of sections 25 and 26:
(a) are in addition to all other rights of a buyer exercisable against a linked credit provider or supplier (whether under this Act or any other Act or law), and
(b) in so far as they relate to the rights between themselves of a linked credit provider and a supplier, may be varied by agreement between the linked credit provider and supplier.
Where there is a dispute arising out of the operation of section 23, 25 or 26, a court may, on the application of a buyer, supplier, credit provider, mortgagee or guarantor, or any other person (being a person claiming an interest in the goods), make an order declaring or adjusting rights or liabilities affected by the operation of that section:
(a) to give effect to, or to enforce, any rights or liabilities consequent upon that operation, or
(b) subject to any such rights or liabilities, to restore the buyer, supplier and credit provider, and any mortgagee, guarantor or other person interested in the goods, as nearly as practicable to their respective positions before the contract to which the dispute relates was entered into.
A supplier who becomes aware that a contract of sale by the supplier is rescinded or discharged, being a contract of sale in respect of which the supplier knows a linked credit provider of the supplier has:
(a) entered into a tied loan contract with the buyer, or
(b) entered an amount in an account of the buyer kept by the credit provider under a tied continuing credit contract in relation to the contract of sale,
shall forthwith give notice of the rescission or discharge to the linked credit provider.
Penalty: 10 penalty units.
In this Part, a reference to a credit sale contract does not include a reference to a credit sale contract relating to goods or services in relation to which the cash price is more than $20,000, unless:
(a) it is a contract relating to a commercial vehicle or farm machinery, or
(b) it is a contract relating to:
(i) a commercial vehicle or farm machinery in relation to which the cash price is more than $20,000, and
(ii) other goods or services.
In this Part, a reference to a loan contract does not include a reference to a loan contract in respect of which:
(a) the amount financed is more than $20,000,
(b) there is no annual percentage rate or there is only one annual percentage rate and that rate does not exceed 14 per centum, or
(c) there is an acceptable rate of interest and a higher annual percentage rate that exceeds the acceptable rate by not more than 2 per centum and that acceptable rate does not exceed 14 per centum,
unless, when the contract is made, a mortgage relating to a commercial vehicle or farm machinery has been, or is agreed to be, entered into to secure the payment of a debt or the performance of an obligation under the contract.
Where the annual percentage rate in respect of a loan contract may, at the option of the credit provider, be any rate less than, or not exceeding, an annual percentage rate specified by the credit provider, that specified rate shall, for the purposes of subsection (2) (b), be deemed to be the annual percentage rate in respect of the contract, whether or not the annual percentage rate applied under the contract is a lower rate than that specified rate.
Subject to subsection (2), a credit provider shall not enter into a credit sale contract or a loan contract that is not in writing signed by the debtor.
Penalty: 10 penalty units.
Subsection (1) is not contravened if a credit sale contract or a loan contract is made by the acceptance of an offer in writing signed by the debtor to the credit provider to enter into the contract.
A person who is:
(a) a credit provider,
(b) an agent of a credit provider authorised to receive an offer to the credit provider to enter into a credit sale contract or a loan contract, or
(c) a supplier in relation to whom a credit provider is a linked credit provider,
shall not give to a person a document for signature by that person as an offer in writing to the credit provider to enter into a credit sale contract or a loan contract unless it includes a notice that is in the form prescribed for the purposes of this subsection and is in a position so prescribed or, in a particular case, in a position approved by the Tribunal.
Penalty: 20 penalty units.
A credit provider or an agent of a credit provider shall not give to a person an offer in writing signed by or on behalf of the credit provider to enter into a credit sale contract or a loan contract unless it includes a notice that is in the form prescribed for the purposes of this subsection and is in a position so prescribed or, in a particular case, in a position approved by the Tribunal.
Penalty: 20 penalty units.
Where:
(a) a credit provider,
(b) an agent of a credit provider authorised to receive an offer to the credit provider to enter into a credit sale contract or a loan contract, or
(c) a supplier in relation to whom a credit provider is a linked credit provider,
gives to a person a document for signature by that person as an offer in writing to the credit provider to enter into a credit sale contract or a loan contract, the credit provider, agent or supplier, as the case may be, shall, before that person signs the document, also give to that person a true copy of the document for the person’s own use certified by the credit provider, agent or supplier as a true copy of the first-mentioned document.
Penalty: 10 penalty units.
Where a credit provider or an agent of a credit provider gives to a person an offer in writing signed by or on behalf of the credit provider to enter into a credit sale contract or a loan contract, the credit provider or agent shall, before that person accepts the offer, also give to that person a true copy of the offer for the person’s own use certified by the credit provider or agent as a true copy of the offer.
Penalty: 10 penalty units.
Where a person signs a document and thereby offers to enter into, or enters into, a credit sale contract or a loan contract, any subsequent alteration of, or addition to, the terms and conditions of the contract has no force or effect unless, after the alteration or addition has been made, the person has, opposite the alteration or addition, signed or initialled the margin of:
(a) the document in which the terms and conditions of the contract are specified, and
(b) the copy of the document given to the person pursuant to subsection (3) or (4).
Where a person signs a document and thereby offers to enter into, or enters into, a credit sale contract, or a loan contract:
(a) the credit provider,
(b) an agent of the credit provider authorised to make or receive the offer to enter into the contract, or
(c) a supplier in relation to whom the credit provider is a linked credit provider,
shall not alter or add to the terms and conditions specified in the document with intent to deceive the debtor or, where the alteration or addition is made by the supplier, with intent to deceive the credit provider, whether or not the document in which those terms and conditions are specified has been signed or initialled as provided in subsection (5).
Penalty: 50 penalty units.
In this section
Where a person has signed an offer in writing to a credit provider to enter into a credit sale contract or a loan contract, the credit provider shall, not later than 14 days after accepting the offer, give to the debtor notice in writing of the acceptance endorsed on, or accompanied by, a copy of the offer.
Penalty: 20 penalty units.
Subsection (1) does not apply in relation to:
(a) an offer to enter into a credit sale contract relating to goods that, in accordance with the offer, is accepted by delivery of the goods, or
(b) an offer to enter into a credit sale contract relating to services that, in accordance with the offer, is accepted by commencement of performance of the services.
In this section,
Where a credit sale contract or a loan contract is made, the credit provider shall, not later than 14 days after the contract is made, give to the debtor a statement in or to the effect of the form prescribed for the purposes of this section.
Penalty: 20 penalty units.
Subsection (1) does not apply if the credit provider, an agent of the credit provider or a supplier in relation to whom the credit provider is a linked credit provider gives to the debtor at or before the time when the credit sale contract or loan contract is made the statement referred to in that subsection.
A credit sale contract relating to goods or services shall include:
(a) the date on which the contract, or an offer to enter into the contract, was signed by the debtor,
(b) a description or identification of the goods or services,
(c) a statement of the amount financed in accordance with Schedule 2,
(d) a statement of the credit charge in accordance with Schedule 3,
(e) where, at the relevant date, it is possible to express the whole of the credit charge as an amount of money, a statement of the total of:
(i) the credit charge, and
(ii) the amount financed,
(f) a statement of the annual percentage rate in accordance with section 38,
(g) a statement of the person to whom, and the place at which, payments by the debtor are to be made,
(h) a statement whether payments are to be made by instalments and, if they are to be so made, a statement of such of the following as are known or can be calculated at the relevant date:
(i) where each instalment is the same amount, that amount,
(ii) where each instalment except the last is the same amount, that amount and the amount of the last instalment,
(iii) where neither subparagraph (i) nor subparagraph (ii) applies, the amount of each instalment,
(iv) the number of instalments, and
(v) the time for the payment of each instalment or the time for the payment of the first instalment and the interval between each instalment and the subsequent instalment,
(i) if a commission charge is payable, a statement to that effect and, except in so far as the information is not known by the credit provider or is not readily available to the credit provider, a statement of the person to whom and the person by whom the commission charge is payable, and
(j) a statement whether any mortgage relating to the contract has been or is agreed to be entered into.
A credit provider shall not include in the amount financed under a credit sale contract:
(a) an amount payable by the debtor to the credit provider in respect of a risk under a contract of insurance (not being compulsory insurance relating to goods) other than a risk specified in clause 1 (d) (iv) or 1 (e) of Schedule 2,
(b) where a mortgage relating to the contract has been entered into, an amount in respect of insurance against loss of the security interest of the mortgagee in any goods subject to the mortgage by reason of any Act exceeding an amount calculated by applying the prescribed rate for title insurance in relation to goods of that class, or
(c) an amount in respect of the discharge of a liability of the debtor to the credit provider under a regulated contract that exceeds the amount of the net balance due to the credit provider calculated in accordance with section 103 immediately before the discharge of the liability.
Nothing in this section requires the inclusion in a credit sale contract of a statement referred to in this section that is not applicable to the contract.
In this section,
For the purposes of Part 2:
(a) the definition of
linked credit provider in section 5 (1) applies in relation to a vendor of land in the same way as it applies in relation to a supplier of goods or services,(b) a credit provider and a vendor of land have a trade or tie agreement if they have an agreement or arrangement, whether formal or informal, for the provision of credit to purchasers of land from that vendor,
(c) section 12 applies to a loan contract entered into by a credit provider with a purchaser of land from a vendor in the same way as it applies to a loan contract entered into by a credit provider with a buyer of goods or services from a supplier,
(d) sections 24 to 29 apply to a vendor of land and the provision of credit in respect of the payment by a purchaser under a contract for the purchase of land from that vendor in the same way as they apply to a supplier of goods or services and the provision of credit in respect of the payment by a buyer for goods or services supplied by that supplier,
(e) a reference to a tied loan contract includes a reference to a loan contract under which the amount financed is not in excess of $20,000 and is applied in making a payment under a contract for the purchase of land unless the credit provider did not know, and could not reasonably have known, that the amount financed was to be so applied, and
(f) a reference to a tied continuing credit contract includes a reference to such a contract under which an amount that:
(i) does not exceed $20,000, and
(ii) is in respect of a payment under a contract for the purchase of land,
is entered in an account of the debtor kept by the credit provider unless the credit provider did not know, and could not reasonably have known, that the amount was in respect of such a payment.
A credit provider must not enter into a regulated contract if the annual percentage rate in respect of the contract exceeds the
Maximum penalty: 25 penalty units.
A regulated contract (including any mortgage in so far as it relates to the contract) is void if it is entered into in contravention of subsection (1).
However, it is not a contravention of subsection (1) for a credit provider to enter into a regulated contract in respect of which the annual percentage rate exceeds the maximum rate if:
(a) the amount financed under the contract does not exceed $2,000, and
(b) the credit provider has not, within the period of 2 years before the date of the contract, engaged in any business with respect to the provision of credit to the debtor, the debtor’s spouse or any member of the debtor’s family residing with the debtor at the date of the contract, and
(c) the annual percentage rate calculated by reference to the credit charge payable under the contract, reduced by an amount which is the lesser of 7% of the amount financed or $35, does not exceed the maximum rate.
If, by the operation of this section, a regulated contract is void, the debtor is entitled to recover from the credit provider as a debt any amount paid to the credit provider under the contract.
The regulations may make provision for the inclusion in any regulated contract of a statement relating to the annual percentage rate of the contract or to the maximum rate (or to both).
Nothing in this section affects the powers of the Tribunal under Part 9 in relation to a contract or mortgage that is not, by reason of this section, void.
Nothing in this Act affects the operation of the Contracts Review Act 1980.
(Repealed)
Schedule 8 has effect.
(Section 11)
This Schedule applies to a credit sale contract or a loan contract, where:
(a) the whole or any part of the credit charge is a pre-determined credit charge or an estimated credit charge,
(b) the whole of the amount financed was provided on the same day,
(c) the amount financed and the credit charge are payable by not more than 260 equal instalments at equal intervals, the first interval commencing on the date on which the amount financed was provided and the last interval ending not more than five years after that date, and
(d) the period of each interval is 1 month or does not exceed 4 weeks.
Where this Schedule applies to a contract, the credit provider may, instead of accurately calculating the amount of the pre-determined credit charge or estimated credit charge which has accrued due under the contract at a particular time, calculate the amount in accordance with the formula:
where:
For the purposes of this Schedule:
(a) instalments shall be deemed to be equal if all the instalments except one are of the same amount and the difference between the amount of that one instalment and the amount of each of the other instalments is not more than $5 or 5 per centum of the amount of each of the other instalments, whichever is the greater,
(b) monthly intervals shall be deemed to be equal intervals, and
(c) intervals shall be deemed to be equal if all the intervals except one are of the same length and the difference between the length of that one interval and the length of each of the other intervals is not more than 5 per centum of the length of each of the other intervals.
(Section 35)
A statement of the amount financed shall state:
(a) the amount (if any) paid or provided, or to be paid or provided, by way of deposit, showing separately the amounts paid or to be paid in money, the amounts provided or to be provided by a consideration other than money, and the amount included in the deposit on account of a trade-in allowance (if any) and the person by whom the trade-in allowance was given,
(b) the cash price of the goods or services, and
(c) the balance of the cash price after deduction of the amount (if any) paid or provided, or to be paid or provided, by way of deposit,
and shall include statements showing separately such amounts (not being amounts included in paragraph (a) or (b)) as, under the contract, are payable by the debtor to the credit provider (otherwise than as part of the credit charge) whether or not the credit provider pays, or has paid, those amounts to another person and are:
(d) where the contract relates to goods, amounts payable in respect of:
(i) charges for installation of the goods,
(ii) charges for maintenance of the goods,
(iii) charges for delivery of the goods to the debtor, or
(iv) where the goods are, or include, a motor vehicle, boat or other vehicle or thing required to be registered or licensed, registration fees and (unless included in the statement under paragraph (e)) amounts payable in respect of compulsory insurance,
(e) amounts payable in respect of contracts of insurance (if any) entered into in relation to the contract, showing separately, in respect of each such contract the name of the insurer and:
(i) where the contract relates to goods that are, or include, a motor vehicle, boat or other vehicle or thing required to be registered or licensed, amounts so payable in respect of compulsory insurance (unless those amounts are included in a statement under paragraph (d)),
(ii) where there is a mortgage relating to the contract, amounts so payable in respect of insurance of property subject to the mortgage (other than compulsory insurance included in the statement under subparagraph (i) or under paragraph (d)),
(iii) where there is a mortgage relating to the contract, amounts so payable in respect of insurance against loss of the security interest of the mortgagee in any goods subject to the mortgage by reason of any Act,
(iv) amounts so payable in respect of insurance against sickness of, accidental injury to, or disability or death of, the debtor or against unemployment of the debtor or, where there is more than one debtor, amounts so payable in respect of such insurance in relation to the debtors,
(v) amounts so payable in respect of life insurance of the debtor or, where there is more than one debtor, amounts so payable in respect of life insurance of the debtors,
(vi) (Repealed)
(vii) amounts so payable in respect of insurance against loss of profits by the debtor or, where there is more than one debtor, amounts so payable in respect of insurance against loss of profits by the debtors, and
(viii) amounts so payable in respect of insurance against such other risks (if any) as are prescribed,
or, where an amount is payable in respect of a contract of insurance entered into in relation to the contract relating to one or more of the risks referred to in the preceding subparagraphs—that amount and a statement of the risks to which the amount relates,
(f) amounts so payable in respect of:
(i) stamp duty payable in respect of or in relation to the contract,
(ii) stamp duty payable in respect of or in relation to any mortgage relating to the contract entered into on or before the relevant date, or
(iii) fees payable to an Australian legal practitioner (not being the credit provider or an employee of the credit provider) authorised to prepare documents for the contract or for a mortgage relating to the contract entered into at or before the time of the making of the contract,
(g) amounts that are prescribed charges for the purposes of this paragraph,
(h) amounts that are the consideration, or part of the consideration, for the discharge of the liability of the debtor to the credit provider under a contract in force before the relevant date, other than consideration referred to in a preceding paragraph,
(i) amounts payable in respect of the value of any consideration provided by the credit provider to the debtor, being consideration of a kind prescribed for the purposes of this paragraph, other than consideration referred to in a preceding paragraph,
and shall state the amount financed, being the sum of the balance of the cash price referred to in paragraph (c) and the total of the amounts referred to in paragraphs (d) to (i).
In clause 1,
(Section 35)
A statement in a credit sale contract of the credit charge:
(a) shall, where at the relevant date it is possible to express the whole or any part of the credit charge as an amount of money, state separately:
(i) the amount of the minimum credit charge (if any),
(ii) the amount of the pre-determined credit charge (if any), and
(iii) the amount of the estimated credit charge (if any) that can be so expressed at the relevant date,
(b) shall, where at the relevant date it is not possible to express the whole of the credit charge as an amount of money:
(i) state the method by which the amount of the estimated credit charge that cannot be so expressed is to be ascertained, and
(ii) include a statement that it is not possible at the relevant date to express the whole of the credit charge as an amount of money, and
(c) shall include a statement that no part of the credit charge (other than the minimum credit charge (if any)) becomes due and payable unless it is an accrued credit charge.
In clause 1,
(Section 36)
A statement of the amount financed shall state:
(a) the amount agreed under the contract to be lent (other than amounts referred to in paragraphs (b)–(f)):
and shall include statements showing separately such amounts as, under the contract, are payable by the debtor to the credit provider (otherwise than as part of the credit charge) whether or not the credit provider pays, or has paid, those amounts to another person and are:
(b) amounts payable in respect of contracts of insurance (if any), entered into in relation to the contract showing separately in respect of each contract the name of the insurer and:
(i) where there is a mortgage relating to the contract, amounts so payable in respect of insurance of property subject to the mortgage,
(ii) where there is a mortgage relating to the contract, amounts so payable in respect of insurance against loss of the security interest of the mortgagee in any goods subject to the mortgage by reason of any Act,
(iii) amounts so payable in respect of insurance against sickness of, accidental injury to, or disability or death of, the debtor or against unemployment of the debtor or, where there is more than one debtor, amounts so payable in respect of such insurance in relation to the debtors,
(iv) amounts so payable in respect of life insurance of the debtor or, where there is more than one debtor, amounts so payable in respect of life insurance of the debtors,
(v) (Repealed)
(vi) amounts so payable in respect of insurance against loss of profits by the debtor or, where there is more than one debtor, amounts so payable in respect of insurance against loss of profits by the debtors, and
(vii) amounts so payable in respect of insurance against such other risks (if any) as are prescribed,
or where an amount is payable in respect of a contract of insurance entered into in relation to the contract relating to one or more of the risks referred to in the preceding subparagraphs—that amount and a statement of the risks to which the amount relates,
(c) amounts payable in respect of:
(i) stamp duty payable in respect of or in relation to the contract,
(ii) stamp duty payable in respect of or in relation to any mortgage relating to the contract entered into on or before the relevant date, or
(iii) fees payable to an Australian legal practitioner (not being the credit provider or an employee of the credit provider) authorised to prepare documents for the contract or for a mortgage relating to the contract entered into at or before the time of the making of the contract,
(d) amounts that are prescribed charges for the purposes of this paragraph,
(e) amounts that are the consideration, or part of the consideration, for the discharge of the liability of the debtor to the credit provider under a contract in force before the relevant date, other than consideration referred to in a preceding paragraph, and
(f) amounts payable in respect of the value of any consideration provided by the credit provider to the debtor, being consideration of a kind prescribed for the purposes of this paragraph, other than consideration referred to in a preceding paragraph,
and shall state the amount financed, being the sum of the amounts referred to in the preceding paragraphs.
In clause 1,
(Section 36)
A statement in a loan contract of the credit charge:
(a) shall, where at the relevant date it is possible to express the whole or any part of the credit charge as an amount of money, state separately:
(i) the amount of the minimum credit charge (if any),
(ii) the amount of the pre-determined credit charge (if any), and
(iii) the amount of the estimated credit charge (if any) that can be so expressed at the relevant date,
(b) shall, where at the relevant date it is not possible to express the whole of the credit charge as an amount of money:
(i) state the method by which the amount of the estimated credit charge that cannot be so expressed is to be ascertained, and
(ii) include a statement that it is not possible at the relevant date to express the whole of the credit charge as an amount of money, and
(c) shall include a statement that no part of the credit charge (other than the minimum credit charge (if any)) becomes due and payable unless it is an accrued credit charge.
In clause 1,
(Section 38)
This Schedule applies to a credit sale contract or a loan contract, where:
(a) the whole of the credit charge is a pre-determined credit charge,
(b) the whole of the amount financed is, or is to be, provided on the same day, and
(c) the amount financed and the pre-determined credit charge are payable by equal instalments at equal intervals, the first interval commencing on the date on which the amount financed is provided.
Where this Schedule applies to a contract, the annual percentage rate may be determined in accordance with the formula:
where:
where:
For the purposes of this Schedule:
(a) instalments shall be deemed to be equal if all the instalments except one are of the same amount and the difference between the amount of that one instalment and the amount of each of the other instalments is not more than $5 or 5 per centum of the amount of each of the other instalments, whichever is the greater,
(b) monthly intervals shall be deemed to be equal intervals, and
(c) intervals shall be deemed to be equal if all the intervals except one are of the same length and the difference between the length of that one interval and the length of each of the other intervals is not more than 5 per centum of the length of each of the other intervals.
(Section 61)
A statement of account for a continuing credit contract shall include a statement of:
(a) the date of the last day of the billing cycle,
(b) the amount owed by the debtor under the contract on the first day of the billing cycle,
(c) the amount owed by the debtor under the contract on the last day of the billing cycle,
(d) the date of purchase and cash price of goods or services supplied by the credit provider during the billing cycle in respect of payment for which credit is provided under the contract and such a description of each transaction as will enable it to be identified,
(e) particulars, including the amount, of each amount of cash supplied by the credit provider during the billing cycle in respect of the supply of which credit is provided under the contract,
(f) particulars of each amount in respect of which, under the contract, credit is provided to the debtor during the billing cycle in respect of goods or services or cash supplied by a person other than the credit provider and in relation to each such amount particulars of the suppliers of the goods or services or of the cash to which the amount relates,
(g) particulars of each amount paid by the debtor to the credit provider under the contract during the billing cycle,
(h) each amount (not being a payment by the debtor to the credit provider) by way of refund or allowance given to the debtor during the billing cycle,
(i) particulars of each amount (not being a payment by the debtor to the credit provider) by reason of which an amount included in an amount referred to in paragraph (d), (e), (f), (j), (k) or (l) is cancelled or reduced by reason of an amount by way of refund or allowance given to the debtor during the billing cycle,
(j) where the statement of account includes a statement under paragraph (d) of amounts relating to goods—particulars, so far as they are known or can be ascertained, of amounts included in that amount in respect of:
(i) charges for installation of the goods,
(ii) charges for maintenance of the goods, or
(iii) charges for delivery of the goods to the debtor,
unless included in the cash price of the goods under paragraph (d),
(k) particulars of amounts that, during the billing cycle, are added to the amount payable under the contract by the debtor to the credit provider, whether or not the credit provider pays, or has paid, those amounts to another person, in respect of contracts of insurance (if any) entered into in relation to the contract showing separately in respect of each such contract the name of the insurer and:
(i) where there is a mortgage relating to the contract, amounts so payable in respect of insurance of property subject to the mortgage,
(ii) where there is a mortgage relating to the contract, amounts so payable in respect of insurance against loss of the security interest of the mortgagee in any goods subject to the mortgage by reason of any Act,
(iii) amounts so payable in respect of insurance against sickness of, accidental injury to, or disability or death of, the debtor or against unemployment of the debtor or, where there is more than one debtor, amounts so payable in respect of such insurance in relation to the debtors,
(iv) amounts so payable in respect of life insurance of the debtor or, where there is more than one debtor, amounts so payable in respect of life insurance of the debtors,
(v) (Repealed)
(vi) amounts so payable in respect of insurance against loss of profits by the debtor or, where there is more than one debtor, amounts so payable in respect of insurance against loss of profits by the debtors, and
(vii) amounts so payable in respect of insurance against such other risks (if any) as are prescribed,
or, where an amount is payable in respect of a contract of insurance entered into in relation to the contract relating to one or more of the risks referred to in the preceding subparagraphs—that amount and a statement of the risks to which the amount relates,
(l) amounts that during the billing cycle are added to the amount payable under the contract by the debtor to the credit provider in respect of:
(i) stamp duty payable in respect of or in relation to the contract, or
(ii) stamp duty payable in respect of or in relation to any mortgage relating to the contract entered into during the billing cycle,
(m) the amount of the credit charge in respect of the billing cycle,
(n) the annual percentage rate in respect of the contract and the manner of its application to the contract,
(o) where the statement of account includes a request for payment of an amount by the debtor:
(i) the amount payable or the manner in which it may be ascertained from the statement,
(ii) the person to whom and the place at which the amount is payable, and
(iii) the date before which the amount is to be paid,
(p) particulars of amounts that during the billing cycle are added to the amount payable under the contract by the debtor to the credit provider and are the consideration, or part of the consideration, for the discharge of the liability of the debtor to the credit provider under a contract in force before the first day of the billing cycle other than consideration referred to in a preceding paragraph,
(q) particulars of any amount transferred to or from the account to which the statement relates from or to any other account maintained under the contract, and
(r) particulars of amounts that during the billing cycle are added to the amount payable under the contract by the debtor to the credit provider in respect of the value of any consideration provided by the credit provider to the debtor, being consideration of a kind prescribed for the purposes of this paragraph, other than consideration referred to in a preceding paragraph.
In clause 1:
(a) a reference to an amount paid, or owed by or supplied to, or in respect of which credit is provided to or given by way of refund or allowance to, a debtor under a continuing credit contract at a particular time or during a particular period:
(i) does not include a reference to an amount paid or owed by, or supplied to, or in respect of which credit is provided to, or given by way of refund or allowance to, the debtor at that time or during that period that is not at that time or during that period entered in an account of the debtor kept by the credit provider, and
(ii) includes a reference to an amount paid or owed by or supplied to, or in respect of which credit is provided to, or given by way of refund or allowance to, the debtor before that time or period that has not been included in an earlier statement of account under the contract, and
(b) a reference to goods or services supplied to a debtor during a billing cycle:
(i) does not include a reference to goods or services supplied to a debtor during a billing cycle but in respect of which an amount is not during the billing cycle entered in an account of the debtor kept by the credit provider, and
(ii) includes a reference to goods or services supplied before the commencement of the billing cycle but that have not been included in an earlier statement of account under the contract.
(Section 173)
This clause applies to credit sale contracts or loan contracts entered into before the commencement of this clause.
If a statement about an insurance commission charge payable in respect of a credit sale contract or a loan contract was included in written information given or shown to the debtor before or at the time that the debtor entered into the contract, section 42 does not operate (and is taken never to have operated) to relieve the debtor from liability to pay to the credit provider any credit charge under the contract merely because the contract does not include that statement.
If:
(a) an insurance commission charge was payable to the credit provider in respect of a credit sale contract or a loan contract, and
(b) an insurance commission charge was also payable to a body with a name that is similar to (or a derivative of) the name of the credit provider and a statement about the insurance commission charge payable to that body was included in the contract or in written information referred to in subclause (2),
section 42 does not operate (and is taken never to have operated) to relieve the debtor from liability to pay to the credit provider any credit charge under the contract merely because the contract does not include a statement about the insurance commission charge payable to the credit provider.
Nothing in this clause affects the liability of a person to be convicted of an offence under this Act.
This clause does not apply to any liability to pay any credit charge which has been determined by the Tribunal before the commencement of this clause.
In this clause, a reference to a statement about any insurance commission charge that is payable in respect of a credit sale contract or loan contract is a reference to a statement:
(a) which relates to a commission charge for a contract of insurance entered into in connection with the credit sale contract or loan contract, and
(b) which is required by section 35 (1) (i) or 36 (1) (h) to be included in the credit sale contract or loan contract.
The amendments made to Schedules 2, 4 and 7 by the Credit (Amendment) Act 1990 apply to regulated contracts entered into before as well as after the commencement of those amendments.
A debtor who was, before the commencement of those amendments, not liable (because of section 42, section 67 or any other provision of this Act) to pay to the credit provider any credit charge under a contract, but becomes so liable (because of subclause (1)) is taken always to have been liable to pay that charge.
This clause does not apply to any liability to pay any credit charge which has been determined by the Tribunal before the commencement of this clause.
A regulation under section 123 which prescribes the term “consumer credit insurance” to describe the insurance referred to in clause 1 (e) (iv) of Schedule 2, clause 1 (b) (iii) of Schedule 4 or clause 1 (k) (iii) of Schedule 7 is taken to authorise (and always to have authorised) the use of that term to describe that insurance even though it included insurance against unemployment.
A regulation under section 123 which prescribes the term “unemployment insurance” to describe the insurance referred to in clause 1 (e) (vi) of Schedule 2, clause 1 (b) (v) of Schedule 4 or clause 1 (k) (v) of Schedule 7 (as in force before the repeal of those provisions) is taken to authorise (and always to have authorised) the use of that term to describe insurance against unemployment of the debtor despite the repeal of those provisions.
The amendments made to sections 85 and 86 by the Credit (Amendment) Act 1990 apply to proceedings in the Tribunal commenced before as well as after the commencement of those amendments.
Sections 85A and 86A do not apply to proceedings pending in the Tribunal on the commencement of those sections, but apply to proceedings commenced after the commencement of those sections even though the contraventions or failures to which the proceedings relate occurred before that commencement.
The amendment to this Act made by the Credit Legislation (Amendment) Act 1989 is taken to have commenced on 28 February 1985.
The amendments to this Act made by the Credit (Amendment) Act 1992 apply to proceedings commenced before the commencement of that Act in the same way as they apply to proceedings commenced on or after that commencement.
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