Money-lenders and Infants Loans Act 1905 (NSW)

A c t No . 24, 1905.

A n A c t to r e g u l a t e t h e b u s i n e s s of m o n e y ­

l e n d e r s ,	a n d	to	r e n d e r	p e n a l	t h e	i n c i t i n g
in fan t s	to	b o r r o w i n g	m o n e y ,	a n d	for	o t h e r

p u r p o s e s , [loth November, 1905.]

Assembly of New South Wales in Par l i ament assembled, and by the t h e advice and consent of the Legislat ive Council and Legis la t ive au tho r i t y of the same, as follows :— BE it enacted by the K ing ' s Most Excel lent Majesty, by and with

1. (1) AA'here proceedings arc t aken in any court by a money­

lender for t h e recovery of a n y money lent after t he pass ing of this Act , or t he enforcement of any ag reement or securi ty made or t aken after t he passing of th is Act , in respect of money len t ei ther before or after the pass ing of this Act, and the re is evidence which satisfies the cou r t—

(1) t h a t t he t ransact ion is such tha t a Court of E q u i t y would

gran t relief; or

(2) t h a t t h e interest charged in respect of the sum actual ly len t

is excessive; or

(3) t ha t the a m o u n t s charged for expenses, lines, bonus , p r e m i u m s , renewals , or any o ther charges , a re excessive, and t h a t in e i ther of such last two cases the t ransact ion is harsh and unconscionable in its na tu re ,

the cour t may reopen the t ransact ion, and take or direct to be t aken an account be tween the money- lender and the person sued, and may , no twi ths t and ing any s ta tement or se t t l ement of account , or any agree­ m e n t pu rpo r t i ng to close previous dealings and create a new obligat ion, reopen any account a l ready t aken be tween them, and relieve the person sued from paymen t of any sum in excess of t he s u m found to be fairly due in respect of such pr incipal , interest , and charges as, hav ing regard to t he risk and all the c i rcumstances , may be found to be r ea sonab le ; and if any such excess has been paid, or allowed in account , by the debtor, may order the credi tor to repay i t ; and may set aside, e i ther wholly or in par t , or revise or alter, any secur i ty given or agreement made in respect of money lent by the money­ lender, and if the money-lender has par ted wi th the security may order h im to indemnify the borrower or o ther person sued.

(2) Any court in which proceedings migh t be taken for the recovery of money len t by a money-lender shall have and may exercise a t the instance of the borrower or surety or other person liable the l ike powers as may be exercised u n d e r th is section where proceedings are

are taken for the recovery of money lent ; and the court shall have power, no twi th s t and ing any provision or agreement to t he cont rary , to en te r t a in any applicat ion under this .Vet by the borrower or sure ty , or o the r person liable, no twi th s t and ing tha t the t ime for repayment of the loan or any ins ta lment thereof may not have arr ived.

(3) On any applicat ion re la t ing to the admission or a m o u n t

of a proof by a money- lender in any b a n k r u p t c y proceedings, the cour t m a y exercise t he l ike powers as may be exercised unde r th is section w h e n proceedings are t aken for the recovery of money.

(4) The foregoing provisions of this section shall app ly to

any t ransac t ion which, whatever its form may be, is substant ia l ly	one
of money- lend ing by a money-lender .

(5) N o t h i n g in the foregoing provisions of th is section shal l

affect the r igh ts of any bona-tide assignee or holder for value wi thou t

notice.

((>) No th ing in. this section shall be const rued as derogat ing

from the ex is t ing powers or jur isdict ion of any court .
(7) For the purposes of this section all such orders m a y be
made and directions given by the court as it may deem necessary or

proper for the effectual car ry ing out of the provisions there in conta ined.

2. (1) A money-lender , as defined by this A c t , —

(a)	shall register himself as a money-lender in accordance with regula t ions under this Act at an office provided for the purpose by the Reg i s t r a r Genera l under his own or usua l t rade name , and in no o ther name, and wi th t he address, or all the addresses, if more t han one, at which he carries on his business of money- lender ; and
(b)	shall carry on the money-lending business in his registered name, and in no other n a m e and under no other descript ion, and at his registered address or addresses, and a t no o ther address ; and
(c)	shall not enter into any agreement in the course of his

r epaymen t of money, or take any securi ty for money in t he business as a money-lender wi th respect to the advance and

course of his business as a money-lender otherwise t h a n in

his registered n a m e ; and

(d)	shall on reasonable request, and on tender of a reasonable sum for expenses, furnish the borrower wi th a copy of any
document re la t ing to the loan or any securi ty therefor.

(2) I f a money- lender fails to register himself as required by th i s Act , or carries on business otherwise t han in his registered name , or in more than one name , or clseAvhero than at his registered address, or fails to comply with any other requi rement of this section, he shall be l iable on s u m m a r y conviction to a line not exceeding one hund red pounds , and in t he case of a second or subsequen t convict ion to

impr i sonment ,

impr i sonment , with or without hard labour, for a t e rm not exceeding th ree mon ths , or to a fine not exceeding one h u n d r e d pounds, or to b o t h : Provided tha t if the offender be a body corporate or a company, t h a t body corporate or company shall be liable on a second or subsequent conviction to a tine not exceeding live hundred pounds .

(3) A prosecut ion u n d e r subsection (1) (a) of this section shall not be ins t i tu ted except with the consent of the At to rney- General .

3 . (1) The Regis t ra r General , subject to the approval of the

Governor, may m a k e regula t ions respect ing t he regis t ra t ion of money­

lenders, w h e t h e r individuals , firms, societies, or companies , the form of the register , and the par t iculars to be entered there in , and the fees to be paid on regis trat ion and renewal of registrat ion not exceeding one pound for each regis t ra t ion or renewal , and respect ing t he inspect ion of the register and the fees payable therefor.

(2) The registrat ion shall cease to have effect at t he expira t ion

of th ree years from the date of the regis trat ion, b u t may be renewed from t ime to t ime, and if renewed shall have effect for th ree years from the date of the renewal .

4 . I f any money- lender , or any manager , agent , or clerk of

a money- lender , or if any person being a director, manager , or o ther officer of any corporation or company car ry ing on the business of a money- lender , by any false, misleading, or deceptive s ta tement , representat ion, or promise, or by any dishonest concea lment of mater ia l facts, f raudulent ly induces or a t t e m p t s to induce any person to borrow money or to agree to the t e rms on which money is or is to be borrowed, he shal l be gui l ty of misdemeanour , and shal l be liable on ind ic tment to impr i sonment , wi th or wi thout hard labour , for a t e r m not exceeding two years , or to a fine not exceeding five h u n d r e d pounds, or to both .

5. (1) If anyone, for the purpose of ea rn ing interest , commis­
sion, reward, or o ther profit, sends or causes to be sent to a person

who is an infant any circular , notice, adver t i sement , let ter , te legram,

invi te , the person receiving it to borrow money, or to enter into any	or o ther documen t which invites, or m a y reasonably be implied to
t ransac t ion involving the bor rowing of money, or to apply to a n y 2>erson or at any place with a view to obta in ing information or advice as to borrowing money, he shall be gui l ty of a misdemeanour , and shall be liable, if convicted on ind ic tment , to impr isonment , with or w i thou t ha rd labour, for a t e rm not exceeding th ree mon ths , or to a fine not exceeding one hundred pounds , or to both impr i sonment and fine, and if convicted on s u m m a r y convict ion, to impr i sonmen t , w i t h
or w i t h o u t hard labour , for a t e r m not exceeding one m o n t h , or to a
fine not exceeding twen ty pounds, or to both impr i sonment and fine.
(2) I f a n y such document as above in this section ment ioned sent to an infant pu rpo r t s to issue from any address named therein , or

indicates

indicates any address as the place a t which appl icat ion is to he made as to the subject m a t t e r of the document , and at t h a t place the re is carr ied on any business connected wi th loans, whe the r m a k i n g or p rocu r ing loans or otherwise , every person who a t t ends a t such place for the purpose of t a k i n g par t in, or who takes par t in or assists in the car ry ing on of such business, shall be deemed to have sent or caused to be sent such document as aforesaid, unless he proves t h a t be was not in any way a party to and was wholly ignoran t of the sending of

such document .

(3) "Where in any proceedings unde r this section it is proved thai the person to whom the documen t was sent was an infant, the person charged shall be deemed to have known t h a t the person to w h o m the document was sent was an infant , unless he proves t ha t lie bad reasonable ground for bel ieving the infant to be of full age.

6. If anyone , except unde r the au thor i ty of any court , solicits an infant to m a k e an affidavit or s t a tu to ry declarat ion for t h e purpose of or in connect ion wi th any loan, he shall be liable, if convicted on s u m m a r y conviction, to impr isonment wi th or wi thou t hard l abour for a t e rm not exceeding one month , or to a line not exceeding twen ty pounds , or to both impr isonment and line, and if convicted on indic tment , to impr i sonment , with or wi thout hard labour, for a t e r m not exceeding

t h r ee m o n t h s , or to a line not exceeding one hund red pounds .

7 . if any infant, who has cont rac ted a loan which is void or

voidable in law, agrees after he comes of age to pay any money which
iii whole or in part represents or is agreed to be paid in respect of

any such loan, and is not a new advance, such agreement and any ins t rument , negotiable or other , given in pur suance of or for ca r ry ing into effect such agreement or otherwise in relat ion to t he p a y m e n t of money represent ing or in respect of such loan shall, so far as it re lates to money which represents or is payable; in. respect of such loan, and is not a new advance , be void absolutely as against all

persons	whomsofver .
who advert ises or announces himself or holds himself out in any way	every person or company whose business is t h a t of money- lending , or 8. The expression • • 'money- lender" in th i s Ac t shal l include
as car ry ing on tha t business, hu t shall no t i nc lude—

(a)	any pawnbroker in respect of business carried on by him in accordance wi th the provisions of t he Acts for the t ime being in force in relat ion to pawnbrokers ; or
(b) any registered society wi th in the m e a n i n g of t he	iViendly

Societies Act of 1873 or 1809, or any society registered or

h a v i n g rules certified under e i ther of those Acts ;	or
(c)	any body corporate, incorporated or empowered by a special Ac t of Par l i ament , to lend money in accordance wi th such
special A c t ; or

(d)

(d)	any person or company bona fide carrying on the business of bank ing or insurance , or bona fide car ry ing on any business not hav ing for i ts p r imary object the lending of money, in t he course of which and for the purpose whereof money is len t .
9. This Ac t m a v be cited as the " Money- lenders and	In fan t s

Loans Act , 1905 . "