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CONSUMER CREDIT (QUEENSLAND) AMENDMENT BILL 1998

      Queensland




 CONSUMER CREDIT
   (QUEENSLAND)
AMENDMENT BILL 1998

 


 

 

Queensland CONSUMER CREDIT (QUEENSLAND) AMENDMENT BILL 1998 TABLE OF PROVISIONS 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3 Code amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 4 Amendment of s 4 (Meaning of "credit" and "amount of credit") . . . . . . . 6 5 Amendment of s 7 (Provision of credit to which this Code does not apply) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 6 Amendment of s 11 (Presumptions relating to application of Code) . . . . . 7 7 Amendment of s 12 (Credit contract to be in form of written contract document) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 8 Amendment of s 15 (Matters that must be in contract document) . . . . . . . 8 9 Amendment of s 18 (Copy of contract for debtor) . . . . . . . . . . . . . . . . . . . . 9 10 Amendment of s 19 (When debtor may terminate contract) . . . . . . . . . . . . 10 11 Amendment of s 21 (Prohibited monetary obligations) . . . . . . . . . . . . . . . . 10 12 Amendment of s 24 (Early payments and crediting of payments) . . . . . . . . 10 13 Amendment of s 25 (Definitions relating to interest) . . . . . . . . . . . . . . . . . . 11 14 Amendment of s 27 (Early debit or payment of interest charges prohibited) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 15 Amendment of s 30 (Fees or charges passed on to other parties) . . . . . . . . 11 16 Amendment of s 31 (Statements of account) . . . . . . . . . . . . . . . . . . . . . . . . 12 17 Amendment of s 32 (Information to be contained in statements of account) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 18 Amendment of s 34 (Statement of amount owing and other matters) . . . . . 13 19 Amendment of s 36 (Disputed accounts) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 20 Insertion of new s 36A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 36A Dating and adjustment of debits and credits in accounts . . . . . . . . . 14

 


 

2 Consumer Credit (Queensland) Amendment 21 Amendment of s 37 (Deferrals, waivers and changes under contracts) . . . 15 22 Amendment of s 39 (Copy of mortgage for mortgagor) . . . . . . . . . . . . . . . . 15 23 Amendment of s 44 (Third party mortgages prohibited) . . . . . . . . . . . . . . . 15 24 Amendment of s 51 (Disclosure) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 25 Replacement of s 52 (Copies of documents for guarantor) . . . . . . . . . . . . . 16 52 Copies of documents for guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 26 Amendment of s 53 (Guarantor may withdraw before credit is provided) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 27 Amendment of s 54 (Extension of guarantee) . . . . . . . . . . . . . . . . . . . . . . . . 16 28 Amendment of s 55 (Limitation of guarantor's liability) . . . . . . . . . . . . . . . 17 29 Amendment of s 56 (Increase in guarantor's liabilities) . . . . . . . . . . . . . . . 17 30 Amendment of s 59 (Interest rate changes) . . . . . . . . . . . . . . . . . . . . . . . . . . 17 31 Amendment of s 60 (Repayment changes) . . . . . . . . . . . . . . . . . . . . . . . . . . 17 32 Amendment of s 61 (Credit fees and charges changes) . . . . . . . . . . . . . . . . 18 33 Amendment of s 63 (Other unilateral changes by credit provider) . . . . . . . 18 34 Insertion of new s 63A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 63A Particulars of matters as changed only required to be given under this Division in certain cases . . . . . . . . . . . . . . . . . . . . 18 35 Amendment of s 65 (Changes by agreement) . . . . . . . . . . . . . . . . . . . . . . . . 19 36 Amendment of s 67 (Notice of change) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 37 Amendment of s 73 (Time limit) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 38 Amendment of s 76 (Statement of pay out figure) . . . . . . . . . . . . . . . . . . . . 20 39 Amendment of s 78 (Surrender of mortgaged goods and goods subject to sale by instalments) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 40 Amendment of s 80 (Requirements to be met before credit provider can enforce credit contract or mortgage against defaulting debtor or mortgagor) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 41 Amendment of s 86 (Postponement of exercise of rights) . . . . . . . . . . . . . . 22 42 Amendment of s 87 (Effect of negotiated postponement) . . . . . . . . . . . . . . 22 43 Amendment of s 96 (Sale of goods by credit provider) . . . . . . . . . . . . . . . . 23 44 Amendment of s 98 (Compensation to mortgagor) . . . . . . . . . . . . . . . . . . . . 23 45 Amendment of s 99 (Recovery of enforcement expenses) . . . . . . . . . . . . . . 23 46 Amendment of s 100 (Key requirements) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 47 Amendment of s 117 (Linked credit providers and tied credit contracts) . . 24

 


 

3 Consumer Credit (Queensland) Amendment 48 Amendment of s 119 (Right to damages under sale contract against both supplier and linked credit provider (cf. Trade Practices Act 1974 (Cwlth), s 73)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 49 Amendment of s 124 (Termination of sale contract which is conditional on obtaining credit) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 50 Amendment of s 125 (Termination of (or recredit under) tied credit contract if sale contract terminated) . . . . . . . . . . . . . . . . . . . . . . . . . . 25 51 Amendment of s 132 (Meaning of credit-related insurance contract) . . . . . 25 52 Amendment of s 134 (Financing of insurance premiums over mortgaged property) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 53 Amendment of s 138 (Termination of consumer credit insurance contract if credit contract terminated) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 54 Amendment of s 140 (Advertising) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 55 Amendment of s 143 (Interest rates which may be disclosed) . . . . . . . . . . 27 56 Amendment of s 146 (Canvassing of credit at home) . . . . . . . . . . . . . . . . . 27 57 Amendment of s 152 (Disclosures in consumer leases) . . . . . . . . . . . . . . . . 27 58 Amendment of s 153 (Copy of lease etc. for lessee) . . . . . . . . . . . . . . . . . . 27 59 Amendment of s 166 (Assignment by credit provider) . . . . . . . . . . . . . . . . . 28 60 Insertion of new s 169A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 169A Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 61 Replacement of s 171 (Giving notice or other document) . . . . . . . . . . . . . . 28 171 Giving notice or other document . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 62 Amendment of s 172 (Manner of giving notice or other document) . . . . . . 30 63 Amendment of s 176 (Conduct of agents and related matters) . . . . . . . . . 31 64 Insertion of new s 182A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 182A Offences by officers, agents or employees . . . . . . . . . . . . . . . . . . . . 32 65 Amendment of sch 1 (Principal definitions) . . . . . . . . . . . . . . . . . . . . . . . . . 32

 


 

 

1998 A BILL FOR An Act to amend the Consumer Credit (Queensland) Act 1994 to make changes to the Consumer Credit Code

 


 

s1 6 s4 Consumer Credit (Queensland) Amendment The Parliament of Queensland enacts-- 1 title 2 Short Clause 1. This Act may be cited as the Consumer Credit (Queensland) 3 Amendment Act 1998. 4 5 Commencement Clause 2.(1) This Act commences on a day to be fixed by proclamation, except 6 as provided by subsection (2). 7 (2) Sections 4, 8(3), 9, 13, 14, 16(3), 18(1) and (2), 20, 22, 34, 35(3), 8 36(2), 46, 51, 60, and 65(4) to (6) commence on 1 November 1998. 9 amended 10 Code Clause 3. This Act amends the Consumer Credit Code set out in the Appendix to 11 the Consumer Credit (Queensland) Act 1994. 12 of s 4 (Meaning of "credit" and "amount of credit") 13 Amendment Clause 4. Section 4(2), after `deferred.'-- 14 insert-- 15 `The "amount of credit" does not include-- 16 (a) any interest charge under the contract; or 17 (b) any fee or charge-- 18 (i) that is to be or may be debited after credit is first provided 19 under the contract; and 20 (ii) that is not payable in connection with the making of the 21 contract or the making of a mortgage or guarantee related to 22 the contract.'. 23

 


 

s5 7 s7 Consumer Credit (Queensland) Amendment of s 7 (Provision of credit to which this Code does not 1 Amendment apply) 2 Clause 5.(1) Section 7(9), `providing credit'-- 3 omit, insert-- 4 `providing credit to which this Code applies to employees or former 5 employees and to others'. 6 (2) Section 7(9), `credit provider provides credit'-- 7 omit, insert-- 8 `credit provider provides credit to which this Code applies'. 9 of s 11 (Presumptions relating to application of Code) 10 Amendment Clause 6.(1) Section 11(3), `(or any other person who obtained the 11 declaration'-- 12 omit, insert-- 13 `(or any other relevant person who obtained the declaration'. 14 (2) Section 11(3), after `household purposes.'-- 15 insert-- 16 `For the purposes of this subsection, a relevant person is a person 17 associated with the credit provider or a finance broker (or a person acting 18 for a finance broker) through whom the credit was obtained.'. 19 (3) Section 11(3), note-- 20 omit. 21 of s 12 (Credit contract to be in form of written contract 22 Amendment document) 23 Clause 7.(1) Section 12(b)-- 24 omit, insert-- 25 `(b) a written contract document signed by the credit provider and 26 constituting an offer to the debtor that is accepted by the debtor in 27 accordance with the terms of the offer.'. 28

 


 

s8 8 s8 Consumer Credit (Queensland) Amendment (2) Section 12-- 1 insert-- 2 `(2) An offer may be accepted by the debtor for the purposes of 3 subsection (1)(b)-- 4 (a) by the debtor or a person authorised by the debtor accessing or 5 drawing down credit to incur a liability; or 6 (b) by any other act of the debtor or of any such authorised person 7 that satisfies the conditions of the offer and constitutes an 8 acceptance of the offer at law. 9 `(3) The credit provider, or a person associated with the credit provider, 10 may not be authorised by the debtor for the purposes of subsection (2). 11 However, this subsection does not prevent the debtor authorising the credit 12 provider to debit the debtor's account. 13 `(4) In the case of a contract document consisting of more than one 14 document, it is sufficient compliance with this section if one of the 15 documents is duly signed and the other documents are referred to in the 16 signed document.'. 17 of s 15 (Matters that must be in contract document) 18 Amendment Clause 8.(1) Section 15(B)(a)-- 19 omit, insert-- 20 `(a) If the amount of credit to be provided is ascertainable-- 21 (i) that amount; and 22 (ii) the persons, bodies or agents (including the credit 23 provider) to whom it is to be paid and the amounts 24 payable to each of them, but only if both the person, 25 body or agent and the amount are ascertainable.'. 26 (2) Section 15(E), `assumptions in'-- 27 omit, insert-- 28 `assumptions under'. 29

 


 

s9 9 s9 Consumer Credit (Queensland) Amendment (3) Section 15(F)(a)(ii)-- 1 omit, insert-- 2 `(ii) if ascertainable, the number of the repayments; and 3 (iia) if ascertainable, the total amount of the repayments, but 4 only if the contract would, on the assumptions under 5 sections 158 and 160, be paid out within 7 years of the 6 date on which credit is first provided under the contract; 7 and'. 8 (4) Section 15(F), paragraph (b), `repayment.'-- 9 omit, insert-- 10 `repayment. 11 Paragraph (a) does not apply to minimum repayments under a 12 continuing credit contract.'. 13 (5) Section 15(N), paragraph (d), `premium.'-- 14 omit, insert-- 15 `premium. 16 In the case of consumer credit insurance that includes a contract of 17 general insurance within the meaning of the Insurance Contracts Act 18 1984 (Cwlth)-- 19 (i) it is sufficient compliance with paragraphs (a) and (b) if the 20 contract document contains the name of the general insurer 21 and the total amount payable to the insurers (or, if it is not 22 ascertainable, how it is calculated); and 23 (ii) it is sufficient compliance with paragraph (d) relating to the 24 amount of commission if the contract document contains the 25 total amount of commission (expressed as a monetary 26 amount or as a proportion of the premium) to be paid by the 27 insurers.'. 28 of s 18 (Copy of contract for debtor) 29 Amendment Clause 9. Section 18(3)-- 30 omit, insert-- 31

 


 

s 10 10 s 12 Consumer Credit (Queensland) Amendment `(3) Subsection (2) does not apply if the credit provider has previously 1 given the debtor a copy of the contract document to keep.'. 2 of s 19 (When debtor may terminate contract) 3 Amendment Clause 10. Section 19(1), `unless any credit has been obtained or attempted to be 4 obtained under the contract'-- 5 omit, insert-- 6 `unless-- 7 (a) any credit has been obtained under the contract; or 8 (b) a card or other means of obtaining credit provided to the debtor 9 by the credit provider has been used to acquire goods or services 10 for which credit is to be advanced under the contract'. 11 of s 21 (Prohibited monetary obligations) 12 Amendment Clause 11. Section 21(1)(a), `fee'-- 13 omit, insert-- 14 `credit fee'. 15 of s 24 (Early payments and crediting of payments) 16 Amendment Clause 12. Section 24(3)-- 17 omit, insert-- 18 `(3) Despite subsection (2), a credit provider is not required to credit a 19 payment under a credit contract before it is payable under the contract if the 20 contract prohibits its early payment and-- 21 (a) the credit provider informs the debtor, as soon as practicable after 22 the credit provider becomes aware of the payment, that it will not 23 be credited to the debtor (or that any credit will be reversed) until 24 it becomes payable under the contract, and the debtor elects to 25 leave the payment with the credit provider; or 26

 


 

s 13 11 s 15 Consumer Credit (Queensland) Amendment (b) the credit provider informs the debtor, before accepting the 1 payment, that it will not be credited to the debtor until it becomes 2 payable under the contract; or 3 (c) the credit provider refunds the payment to the debtor.'. 4 of s 25 (Definitions relating to interest) 5 Amendment Clause 13.(1) Section 25(2), after `payments'-- 6 insert-- 7 `or any other purposes'. 8 (2) Section 25(2), after `ends.'-- 9 insert-- 10 `Different times of the day may be specified for different purposes.'. 11 of s 27 (Early debit or payment of interest charges 12 Amendment prohibited) 13 Clause 14. Section 27-- 14 insert-- 15 `(4) This section does not apply to the debit of an interest charge under a 16 credit contract before the end of the period to which the charge applies if-- 17 (a) the charge is debited on the last day of the period; and 18 (b) the amount debited is not treated by the credit provider as part of 19 the unpaid daily balance for that day for the purpose of calculating 20 interest charges under the contract.'. 21 of s 30 (Fees or charges passed on to other parties) 22 Amendment Clause 15.(1) Section 30(1), `in respect of an amount payable'-- 23 omit, insert-- 24 `for an amount payable or to reimburse an amount paid'. 25

 


 

s 16 12 s 17 Consumer Credit (Queensland) Amendment (2) Section 30(1), after `actual amount payable'-- 1 insert-- 2 `or paid'. 3 (3) Section 30(4)-- 4 omit. 5 of s 31 (Statements of account) 6 Amendment Clause 16.(1) Section 31(3)(b), after `statement period'-- 7 insert-- 8 `(other than debits for government charges, or duties, on receipts or 9 withdrawals)'. 10 (2) Section 31(3)-- 11 insert-- 12 `(f) the debtor has died or is insolvent and the debtor's personal 13 representative or trustee in bankruptcy has not requested a 14 statement of account.'. 15 (3) Section 31-- 16 insert-- 17 `(4) A separate statement of account may, but need not, be given in 18 respect of each or any number of the credit facilities provided under a credit 19 contract.'. 20 of s 32 (Information to be contained in statements of 21 Amendment account) 22 Clause 17. Section 32(I), `(if not previously disclosed in accordance with this 23 Code).'-- 24 omit, insert-- 25 `(if not previously disclosed in accordance with this Code). 26 In the case of consumer credit insurance that includes a contract of 27

 


 

s 18 13 s 19 Consumer Credit (Queensland) Amendment general insurance within the meaning of the Insurance Contracts Act 1 1984 (Cwlth)-- 2 (i) it is sufficient compliance with paragraph (a) if the statement 3 of account contains the name of the general insurer, the total 4 amount payable to the insurers and the kind of insurance; 5 and 6 (ii) it is sufficient compliance with paragraph (b) if the statement 7 of account contains the total amount of commission 8 (expressed as a monetary amount or as a proportion of the 9 premium) to be paid by the insurers.'. 10 of s 34 (Statement of amount owing and other matters) 11 Amendment Clause 18.(1) Section 34(1)(c), after `amounts'-- 12 insert-- 13 `currently'. 14 (2) Section 34(1)(d), after `amount'-- 15 insert-- 16 `currently'. 17 (3) Section 34-- 18 insert-- 19 `(3A) In the case of joint debtors or guarantors, the statement under this 20 section need only be given to a debtor or guarantor who requests the 21 statement and not, despite section 171, to each joint debtor or guarantor.'. 22 of s 36 (Disputed accounts) 23 Amendment Clause 19.(1) Section 36(4), `In any other case'-- 24 omit, insert-- 25 `In the case of any other credit contract for which a statement of account 26 is given'. 27 (2) Section 36-- 28 insert-- 29

 


 

s 20 14 s 20 Consumer Credit (Queensland) Amendment `(4A) In the case of a credit contract in respect of which a statement of 1 account need not be and is not given for the period to which the disputed 2 liability relates, the notice of dispute must be given to the credit provider not 3 later than 3 months after the end of the contract.'. 4 of new s 36A 5 Insertion Clause 20. Part 2, division 5, after section 36-- 6 insert-- 7 and adjustment of debits and credits in accounts 8 `Dating `36A.(1) For the purposes of this Code and the credit contract, a debit or 9 a credit made by a credit provider to a debtor's account is taken to have been 10 made, and has effect, on the date assigned to the debit or credit, not on the 11 date on which it is processed. 12 `(2) A credit provider may subsequently adjust debits or credits to a 13 debtor's account, and the account balances, so as to accurately reflect the 14 legal obligations of the debtor and the credit provider. 15 `(3) However, subsections (1) and (2) do not permit a debit or a credit to 16 be assigned a date other than the date on which it is processed, or the 17 subsequent adjustment of a debit or a credit or account balance, if-- 18 (a) the assignment or adjustment is not consistent with the credit 19 contract; or 20 (b) the adjustment results in an interest charge that is more than the 21 maximum amount permitted by the Code, as calculated on the 22 basis of debits or credits to a debtor's account consistent with the 23 credit contract; or 24 (c) the assignment or adjustment results in a contravention of 25 section 24; or 26 (d) the assignment of the date on which an interest charge is taken to 27 be debited results in a debit being taken to be done before a time 28 permitted under this Code. 29 `(4) An adjustment by a credit provider under subsection (2) does not 30 affect any liability of a credit provider under Part 6.'. 31

 


 

s 21 15 s 23 Consumer Credit (Queensland) Amendment of s 37 (Deferrals, waivers and changes under contracts) 1 Amendment Clause 21.(1) Section 37, after `or a deferral or waiver of an amount under an 2 existing credit contract'-- 3 insert-- 4 `or a postponement relating to an existing credit contract'. 5 (2) Section 37, `or waiver' (second mention)-- 6 omit, insert-- 7 `, waiver or postponement'. 8 (3) Section 37, `or the contract'-- 9 omit, insert-- 10 `or the existing credit contract'. 11 (4) Section 37-- 12 insert-- 13 `(2) In this section-- 14 "existing credit contract" includes existing consumer lease.'. 15 of s 39 (Copy of mortgage for mortgagor) 16 Amendment Clause 22. Section 39-- 17 insert-- 18 `(2) This section does not apply if the credit provider has previously 19 given the mortgagor a copy of the mortgage document to keep.'. 20 of s 44 (Third party mortgages prohibited) 21 Amendment Clause 23. Section 44-- 22 insert-- 23 `(5) In this section, a reference to a credit contract or guarantee includes a 24 reference to a proposed credit contract or proposed guarantee.'. 25

 


 

s 24 16 s 27 Consumer Credit (Queensland) Amendment of s 51 (Disclosure) 1 Amendment Clause 24. Section 51(1), `Before the obligations under a credit contract are 2 secured by a guarantee'-- 3 omit, insert-- 4 `Before a guarantee is signed by the guarantor'. 5 of s 52 (Copies of documents for guarantor) 6 Replacement Clause 25. Section 52-- 7 omit, insert-- 8 of documents for guarantor 9 `Copies `52.(1) A credit provider must, not later than 14 days after a guarantee is 10 signed and given to the credit provider, give the guarantor-- 11 (a) a copy of the guarantee signed by the guarantor; and 12 (b) a copy of the credit contract or proposed credit contract. 13 `(2) Subsection (1)(a) does not apply if the credit provider has previously 14 given the guarantor a copy of the guarantee document to keep and 15 subsection (1)(b) does not apply if the credit provider has previously given 16 the guarantor a copy of the credit contract or proposed credit contract to 17 keep.'. 18 of s 53 (Guarantor may withdraw before credit is 19 Amendment provided) 20 Clause 26. Section 53(1)(b), `or pre-contractual statement'-- 21 omit. 22 of s 54 (Extension of guarantee) 23 Amendment Clause 27. Section 54(3), `does'-- 24 omit, insert-- 25 `and section 51 (Disclosure) do'. 26

 


 

s 28 17 s 31 Consumer Credit (Queensland) Amendment of s 55 (Limitation of guarantor's liability) 1 Amendment Clause 28. Section 55(2), `or any other act or omission by, or circumstance 2 affecting, the debtor'-- 3 omit. 4 of s 56 (Increase in guarantor's liabilities) 5 Amendment Clause 29. Section 56(2)-- 6 omit, insert-- 7 `(2) This section does not apply to an increase in liabilities resulting 8 from-- 9 (a) a change of a kind referred to in section 58(2)(a) or (b); or 10 (b) a change of which notice is required to be given under Division 1 11 of Part 4 (not being a change referred to in section 62(3) or 63); 12 or 13 (c) a change under section 68(2) or a postponement under 14 section 88(2); or 15 (d) a deferral or waiver of a debtor's obligations for a period not 16 exceeding 90 days.'. 17 of s 59 (Interest rate changes) 18 Amendment Clause 30. Section 59(4), `30 days'-- 19 omit, insert-- 20 `20 days'. 21 of s 60 (Repayment changes) 22 Amendment Clause 31.(1) Section 60(1), `30 days'-- 23 omit, insert-- 24 `20 days'. 25

 


 

s 32 18 s 34 Consumer Credit (Queensland) Amendment (2) Section 60-- 1 insert-- 2 `(2A) If the amount or frequency or time for payment of instalments or 3 minimum repayments is not specified in the credit contract but is 4 determined by a method of calculation so specified, this section requires the 5 credit provider to give particulars only of any change in that method of 6 calculation. 7 `(2B) This section does not apply to a change that occurs while the credit 8 contract does not require any repayment of the amount of credit provided.'. 9 of s 61 (Credit fees and charges changes) 10 Amendment Clause 32. Section 61(1), `30 days'-- 11 omit, insert-- 12 `20 days'. 13 of s 63 (Other unilateral changes by credit provider) 14 Amendment Clause 33.(1) Section 63(1), `30 days'-- 15 omit, insert-- 16 `20 days'. 17 (2) Section 63(3), after `section 59, 60, 61 or 62'-- 18 insert-- 19 `(or which would be required to be so given but for an exception 20 provided in any such section)'. 21 of new s 63A 22 Insertion Clause 34. After section 63-- 23 insert-- 24 of matters as changed only required to be given under 25 `Particulars this Division in certain cases 26 `63A. The credit provider may, under section 59, 60, 61 or 63, give a 27

 


 

s 35 19 s 36 Consumer Credit (Queensland) Amendment person particulars only of a matter as changed instead of particulars of the 1 change, but only if the credit provider-- 2 (a) makes it clear to the person that the matter has changed; or 3 (b) issues to the person a new set of terms and conditions relating to 4 the credit contract, mortgage or guarantee.'. 5 of s 65 (Changes by agreement) 6 Amendment Clause 35.(1) Section 65(1), `within 30 days'-- 7 omit, insert-- 8 `not later than 30 days'. 9 (2) Section 65(3), after `credit contract'-- 10 insert-- 11 `(other than a continuing credit contract)'. 12 (3) Section 65-- 13 insert-- 14 `(5) The credit provider may, under subsection (1), give a person 15 particulars only of a matter as changed instead of particulars of the change, 16 but only if the credit provider-- 17 (a) makes it clear to the person that the matter has changed; or 18 (b) issues to the person a new set of terms and conditions relating to 19 the credit contract, mortgage or guarantee.'. 20 of s 67 (Notice of change) 21 Amendment Clause 36.(1) Section 67, `within 30 days'-- 22 omit, insert-- 23 `not later than 30 days'. 24 (2) Section 67-- 25 insert-- 26

 


 

s 37 20 s 39 Consumer Credit (Queensland) Amendment `(2) The credit provider may, under subsection (1), give a person 1 particulars only of a matter as changed instead of particulars of the change, 2 but only if the credit provider-- 3 (a) makes it clear to the person that the matter has changed; or 4 (b) issues to the person a new set of terms and conditions relating to 5 the credit contract.'. 6 of s 73 (Time limit) 7 Amendment Clause 37.(1) Section 73(1), `the credit provider writes off the relevant debt, 8 whichever occurs first'-- 9 omit, insert-- 10 `otherwise comes to an end'. 11 (2) Section 73(2), `credit provider writes off the relevant debt, whichever 12 occurs first'-- 13 omit, insert-- 14 `credit contract is rescinded or discharged or otherwise comes to an end'. 15 of s 76 (Statement of pay out figure) 16 Amendment Clause 38. Section 76, before penalty-- 17 insert-- 18 `(4) In the case of joint debtors or guarantors, the statement under this 19 section need only be given to a debtor or guarantor who requests the 20 statement and not, despite section 171, to each joint debtor or guarantor.'. 21 of s 78 (Surrender of mortgaged goods and goods 22 Amendment subject to sale by instalments) 23 Clause 39.(1) Section 78(7), `total amount payable under the contract'-- 24 omit, insert-- 25 `amount required to pay out the contract'. 26

 


 

s 40 21 s 40 Consumer Credit (Queensland) Amendment (2) Section 78(8)(a), after `contract'-- 1 insert-- 2 `or guarantee'. 3 (3) Section 78(8)-- 4 insert-- 5 `(e) the expenses reasonably incurred by the credit provider in 6 connection with the possession and sale of the mortgaged 7 goods.'. 8 (4) Section 78(9), `net amount due under the credit contract'-- 9 omit, insert-- 10 `amount required to pay out the credit contract or the amount due under 11 the guarantee'. 12 of s 80 (Requirements to be met before credit provider 13 Amendment can enforce credit contract or mortgage against defaulting debtor or 14 mortgagor) 15 Clause 40.(1) Section 80(3), `during the period of 30 days'-- 16 omit, insert-- 17 `during the period specified in the default notice for remedying the 18 original default'. 19 (2) Section 80-- 20 insert-- 21 `(3A) Combined notices. Default notices that may be given under 22 subsections (1) and (2) may be combined in one document if given to a 23 person who is both a debtor and a mortgagor.'. 24 (3) Section 80(4)(c), `to do so'-- 25 omit, insert-- 26 `to begin the enforcement proceedings'. 27

 


 

s 41 22 s 42 Consumer Credit (Queensland) Amendment (4) Section 80(6), after `property'-- 1 insert-- 2 `or other'. 3 (5) Section 80(6), second sentence-- 4 omit, insert-- 5 `Nothing in this section prevents a notice to a defaulting mortgagor under 6 other legislation being issued at the same time, or in the same document, as 7 the default notice under this section.'. 8 of s 86 (Postponement of exercise of rights) 9 Amendment Clause 41. Section 86(2), `under'-- 10 omit, insert-- 11 `in respect of'. 12 of s 87 (Effect of negotiated postponement) 13 Amendment Clause 42.(1) Section 87(1), `, written notice of the conditions of postponement 14 is given to the debtor, mortgagor or guarantor'-- 15 omit. 16 (2) Section 87-- 17 insert-- 18 `(3) A credit provider must give written notice of the conditions of a 19 postponement referred to in subsection (1) not later than 30 days after 20 agreement is reached on the postponement. The notice must set out the 21 consequences under subsection (5) if the conditions of the postponement 22 are not complied with. 23 Maximum penalty--100 penalty units. 24 `(4) A credit provider that is required to give notice under section 65 in 25 relation to a postponement is not required to comply with subsection (3). 26 `(5) If any of the conditions of a postponement are not complied with, a 27 credit provider is not required to give a further default notice under this 28

 


 

s 43 23 s 45 Consumer Credit (Queensland) Amendment Code to the debtor, mortgagor or guarantor with whom the postponement 1 was negotiated before proceeding with enforcement proceedings.'. 2 of s 96 (Sale of goods by credit provider) 3 Amendment Clause 43.(1) Section 96(2), `total amount payable under the contract'-- 4 omit, insert-- 5 `amount required to pay out the contract'. 6 (2) Section 96(3), `net amount due under the credit contract'-- 7 omit, insert-- 8 `amount required to pay out the credit contract or the amount due under 9 the guarantee'. 10 of s 98 (Compensation to mortgagor) 11 Amendment Clause 44. Section 98(1), after `practicable'-- 12 insert-- 13 `, or at a time agreed between the credit provider and the mortgagor,'. 14 of s 99 (Recovery of enforcement expenses) 15 Amendment Clause 45.(1) Section 99(1), after `the credit provider.'-- 16 insert-- 17 `Enforcement expenses of a credit provider extend to those reasonably 18 incurred by the use of the staff and facilities of the credit provider.'. 19 (2) Section 99-- 20 insert-- 21 `(3) If there is a dispute between the credit provider and the debtor, 22 mortgagor or guarantor about the amount of enforcement expenses that 23 may be recovered by the credit provider, the Court may, on application by 24 any of the parties to the dispute, determine the amount of that liability.'. 25

 


 

s 46 24 s 49 Consumer Credit (Queensland) Amendment of s 100 (Key requirements) 1 Amendment Clause 46.(1) Section 100, `100.'-- 2 omit, insert-- 3 `100.(1)'. 4 (2) Section 100(1)(e) (as renumbered)-- 5 omit, insert-- 6 `(e) section 15(G)(a) and (b)--but only in respect of retained credit 7 fees and charges;'. 8 (3) Section 100(2)(d)-- 9 omit, insert-- 10 `(d) section 15(G)(a) and (b)--but only in respect of retained credit 11 fees and charges;'. 12 of s 117 (Linked credit providers and tied credit 13 Amendment contracts) 14 Clause 47. Section 117(3), after `credit contract'(first mention)-- 15 insert-- 16 `(other than a continuing credit contract)'. 17 of s 119 (Right to damages under sale contract against 18 Amendment both supplier and linked credit provider (cf. Trade Practices Act 1974 19 (Cwlth), s 73)) 20 Clause 48. Section 119(1), after `in relation to the'-- 21 insert-- 22 `sale'. 23 of s 124 (Termination of sale contract which is 24 Amendment conditional on obtaining credit) 25 Clause 49. Section 124-- 26

 


 

s 50 25 s 51 Consumer Credit (Queensland) Amendment insert-- 1 `(4) This section does not apply to a sale contract for the supply of rights 2 in relation to, and interests in, real property unless the supplier was aware 3 that the purchaser intended to obtain the credit from the supplier or from a 4 linked credit provider of the supplier.'. 5 of s 125 (Termination of (or recredit under) tied credit 6 Amendment contract if sale contract terminated) 7 Clause 50. Section 125-- 8 insert-- 9 `(8) This section applies-- 10 (a) to the exercise by a purchaser of a right under this Code or any 11 other law to rescind or discharge a sale contract; and 12 (b) to a tied loan contract or a tied continuing credit contract, but only 13 if the sale contract was the principal purpose for which the credit 14 was provided.'. 15 of s 132 (Meaning of credit-related insurance contract) 16 Amendment Clause 51.(1) Section 132, heading-- 17 omit, insert-- 18 `Interpretation and application'. 19 (2) Section 132-- 20 insert-- 21 `(2) This Code does not apply to insurance over mortgaged property 22 that-- 23 (a) is insurance for an extended period of warranty for goods; or 24 (b) is insurance over property that is not mortgaged to secure 25 obligations under the credit contract. 26 `(3) This Code does not apply to consumer credit insurance in connection 27 with a credit contract unless the contract for consumer credit insurance 28 insures the obligations of the debtor under the credit contract.'. 29

 


 

s 52 26 s 54 Consumer Credit (Queensland) Amendment of s 134 (Financing of insurance premiums over 1 Amendment mortgaged property) 2 Clause 52. Section 134(1), second sentence-- 3 omit. 4 of s 138 (Termination of consumer credit insurance 5 Amendment contract if credit contract terminated) 6 Clause 53.(1) Section 138(4), after `section'-- 7 insert-- 8 `, including the rebate payable where this section does not apply to the 9 whole of a credit-related insurance contract'. 10 (2) Section 138-- 11 insert-- 12 `(6) This section does not apply to a credit-related insurance contract, to 13 the extent that it provides a benefit in the event of the death of the debtor, if a 14 credit contract is terminated on the death of a debtor. However, it does 15 apply to the credit-related insurance contract to the extent that it provides 16 other benefits.'. 17 of s 140 (Advertising) 18 Amendment Clause 54. Section 140(3) and (4)-- 19 omit, insert-- 20 `(3) Annual percentage rate. The advertisement need not contain an 21 annual percentage rate, but must do so if the advertisement states the 22 amount of any repayment. If the advertisement contains an annual 23 percentage rate and credit fees and charges are payable, the advertisement 24 must-- 25 (a) state that fees and charges are payable; or 26 (b) specify the amount of the fees and charges payable; or 27 (c) specify the amount of some of the fees and charges payable and 28 state that other fees and charges are payable. 29

 


 

s 55 27 s 58 Consumer Credit (Queensland) Amendment `(4) Comparison rate. The advertisement may contain the comparison 1 rate calculated as prescribed by the regulations and, if it does so, must be 2 accompanied by the warnings set out in the regulations.'. 3 of s 143 (Interest rates which may be disclosed) 4 Amendment Clause 55. Section 143, `the annual percentage rate or rates'-- 5 omit, insert-- 6 `expressed as a nominal percentage rate per annum'. 7 of s 146 (Canvassing of credit at home) 8 Amendment Clause 56. Section 146(1), `the person.'-- 9 omit, insert-- 10 `a person who resides there.'. 11 of s 152 (Disclosures in consumer leases) 12 Amendment Clause 57. Section 152(1)(c), after `government charge'-- 13 insert-- 14 `(other than on receipts or withdrawals)'. 15 of s 153 (Copy of lease etc. for lessee) 16 Amendment Clause 58. Section 153-- 17 insert-- 18 `(2) Subsection (1) does not apply if the lessor has previously given the 19 lessee a copy of the consumer lease to keep. 20 `(3) Section 171 applies to this section as if references in that section to 21 the credit provider were references to the lessor or a lease broker and as if 22 references in that section to the debtor were references to the lessee.'. 23

 


 

s 59 28 s 61 Consumer Credit (Queensland) Amendment of s 166 (Assignment by credit provider) 1 Amendment Clause 59. Section 166(3), after `debtor'-- 2 insert-- 3 `, or would continue to do so if the debtor complied with the credit 4 contract'. 5 of new s 169A 6 Insertion Clause 60. After section 169-- 7 insert-- 8 9 `Indemnities `169A.(1) An indemnity for any liability under this Code is not void, and 10 cannot be declared void, on the grounds of public policy, despite any rule of 11 law to the contrary. 12 `(2) The liabilities to which this section applies include the following-- 13 (a) a liability for any criminal or civil penalty incurred by any person 14 under this Code; 15 (b) a payment in settlement of a liability or alleged liability under this 16 Code; 17 (c) a liability under another indemnity for any liability under this 18 Code. 19 `(3) This section is subject to section 169(2). 20 `(4) This section does not derogate from any other rights and remedies 21 that exist apart from this section. 22 `(5) This section extends to any indemnity obtained before the 23 commencement of this section.'. 24 of s 171 (Giving notice or other document) 25 Replacement Clause 61. Section 171-- 26 omit, insert-- 27

 


 

s 61 29 s 61 Consumer Credit (Queensland) Amendment notice or other document 1 `Giving `171.(1) Application. This section applies as follows-- 2 (a) This section applies (subject to this subsection) to notices or other 3 documents that are required to be given for the purposes of this 4 Code. 5 (b) This subsection and subsections (3) and (7) apply, but the 6 remainder of this section does not apply, to pre-contractual 7 statements and notices given under section 14. 8 (c) Subsections (4), (5) and (6) do not apply to default notices. 9 (d) This section applies despite the provisions of any other section of 10 this Code (except sections 34(3A) and 76 (4)) to the contrary. 11 12 Note: Examples of notices or other documents to which this section applies are 13 those required to be given under sections 18, 31, 34, 39, 51, 52 and 76. `(2) Unsuccessful attempts by credit provider. A credit provider is 14 relieved from the obligation to give a notice or other document to a person 15 if-- 16 (a) the credit provider has previously made a reasonable (but 17 unsuccessful) attempt to give a notice or other document in 18 accordance with this Code by leaving it at, or by sending it by 19 post, telex, facsimile or similar facility to the appropriate address 20 of the person under section 172; and 21 (b) the credit provider has reasonable grounds for believing that the 22 person can no longer be contacted at that address. 23 `(3) Joint debtors etc--general obligation. In the case of joint debtors, 24 mortgagors or guarantors, a notice or other document must be given to each 25 debtor, mortgagor or guarantor, except as provided by this section. 26 `(4) Joint debtors etc--nomination of one of them. A notice or other 27 document may be given to any 2 or more joint debtors, mortgagors or 28 guarantors by being given to one of the joint debtors, mortgagors or 29 guarantors nominated by them to receive the notice or other document on 30 their behalf. The notice or other document need not be addressed to all of 31 them. 32

 


 

s 62 30 s 62 Consumer Credit (Queensland) Amendment `(5) Joint debtors etc--same address. A single copy of a notice or 1 other document may be given to any 2 or more joint debtors, mortgagors or 2 guarantors at the same address if each of them has consented to a single 3 copy being given and the notice or other document is addressed jointly to 4 them. The procedure prescribed by this subsection is an alternative to the 5 procedure prescribed by subsection (4). 6 `(6) Nominated persons generally. A notice or other document may be 7 given to a person by being given to any other person nominated by the 8 person to receive the notice or other document on his or her behalf. 9 However-- 10 (a) a debtor, mortgagor or guarantor cannot nominate the credit 11 provider or a person associated with the credit provider; and 12 (b) a mortgagor cannot nominate the debtor if the mortgage is given 13 by a guarantor; and 14 (c) a guarantor cannot nominate the debtor. 15 `(7) Legal practitioners. A notice or other document may be given to a 16 person by being given to a legal practitioner acting for the person in the 17 matter concerned. 18 `(8) Withdrawal of nomination or consent. A nomination or consent 19 under this section ceases to have effect if it is withdrawn by the person who 20 made or gave it. 21 `(9) Form of nomination or consent. A nomination or consent under 22 this section (or the withdrawal of any such nomination or consent) must be 23 in the form required by the regulations.'. 24 of s 172 (Manner of giving notice or other document) 25 Amendment Clause 62.(1) Section 172(1)(a)(ii) (first mention), `the address of the place of 26 residence or business of the person last known to the person giving the 27 notice or other document'-- 28 omit, insert-- 29 `an appropriate address of the person'. 30 (2) Section 172(1), `(a) to a body corporate--'-- 31 omit, insert-- 32

 


 

s 63 31 s 63 Consumer Credit (Queensland) Amendment `(b) to a body corporate--'. 1 (3) Section 172(2) (first mention)-- 2 renumber as section 172(4). 3 (4) Section 172(2) (second mention)-- 4 renumber as section 172(5). 5 (5) Section 172-- 6 insert-- 7 `(2) The appropriate address of a debtor, mortgagor, guarantor or 8 consumer lessee for the purposes of subsection (1) is-- 9 (a) an address nominated in writing by that person to the person 10 giving the notice or other document; or 11 (b) if there is no such nomination, the address of the place of 12 residence of that person last known to the person giving the notice 13 or other document. 14 `(3) An appropriate address of any other person for the purposes of 15 subsection (1) is-- 16 (a) an address nominated in writing by that person to the person 17 giving the notice or other document; or 18 (b) the address of the place of residence or business of that person 19 last known to the person giving the notice or other document.'. 20 Amendment of s 176 (Conduct of agents and related matters) 21 Clause 63.(1) Section 176(2), after `person's behalf.'-- 22 insert-- 23 `This subsection does not prevent a credit provider from authorising a 24 person associated with the credit provider to enter into a credit contract on 25 behalf of the credit provider.'. 26 (2) Section 176(4)-- 27 omit. 28

 


 

s 64 32 s 65 Consumer Credit (Queensland) Amendment of new s 182A 1 Insertion Clause 64. After section 182-- 2 insert-- 3 by officers, agents or employees 4 `Offences `182A. An officer, agent or employee of a credit provider or other person 5 may be prosecuted for an offence against this Code or the regulations (if 6 liable for the offence) whether or not proceedings have been taken against 7 the credit provider or other person.'. 8 of sch 1 (Principal definitions) 9 Amendment Clause 65.(1) Schedule 1, `In this Code,'-- 10 omit, insert-- 11 `1.(1) In this Code,'. 12 (2) Schedule 1, definitions "ordinarily resident" and "predominant"-- 13 omit. 14 (3) Schedule 1-- 15 insert-- 16 ` "retained credit fees and charges" means credit fees and charges 17 retained by the credit provider, other than credit fees and charges 18 passed on to (or retained in reimbursement of an amount paid to)-- 19 (a) a third party that is not a related body corporate (for the purposes 20 of the Corporations Law) of the credit provider; or 21 (b) a financial institution that is such a related body corporate in 22 respect of the provision of banking services that are provided to 23 the credit provider by the financial institution on the same terms 24 as those services are ordinarily provided to customers who are 25 not related to or associated with the financial institution.'. 26 (4) Schedule 1, definition "credit fees and charges", paragraph (b)-- 27 omit, insert-- 28

 


 

s 65 33 s 65 Consumer Credit (Queensland) Amendment `(b) any fees or charges that are payable to or by a credit provider in 1 connection with a credit contract in connection with which both 2 credit and debit facilities are available if the fees or charges would 3 be payable even if credit facilities were not available (not being 4 annual fees or charges in connection with continuing credit 5 contracts under which credit is ordinarily obtained only by the use 6 of a card); or'. 7 (5) Schedule 1, definition "credit fees and charges", paragraph (c) `and 8 duties'-- 9 omit, insert-- 10 `, or duties,'. 11 (6) Schedule 1, definition "credit fees and charges"-- 12 insert-- 13 `(d) enforcement expenses.'. 14 (7) Schedule 1-- 15 insert-- 16 `(2) For the purposes of this Code, a person is "associated" with a credit 17 provider if-- 18 (a) the person and the credit provider are related bodies corporate for 19 the purposes of the Corporations Law; or 20 (b) the person is a supplier in respect of whom the credit provider is a 21 linked credit provider; or 22 (c) the person is an officer, agent or employee of the credit provider, 23 or of any such related body corporate or supplier, acting in that 24 capacity.'. 25 26 State of Queensland 1998

 


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