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This is a Bill, not an Act. For current law, see the Acts databases.


CREDIT (RURAL FINANCE) BILL 1995

        Queensland




CREDIT (RURAL FINANCE)
        BILL 1995

 


 

Queensland CREDIT (RURAL FINANCE) BILL 1995 TABLE OF PROVISIONS Section Page PART 1--PRELIMINARY 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3 Definitions and dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 4 Purpose of this Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5 Act applies to all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 6 Courts with jurisdiction under this Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 PART 2--DEFAULT NOTICE 7 Mortgagee must give default notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 8 Requirements for default notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 9 Exception to s 7--further default during notice period . . . . . . . . . . . . . . . . . 7 10 Exception to s 7--taking possession to protect equipment . . . . . . . . . . . . . 7 11 Other exceptions to s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 12 Onus on mortgagee to show s 7 does not apply . . . . . . . . . . . . . . . . . . . . . . . 8 PART 3--RELIEVING ORDER 13 Mortgagor may apply for a relieving order . . . . . . . . . . . . . . . . . . . . . . . . . . 8 14 Notice of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 15 Effect of serving notice of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 16 Court may make relieving order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 17 Compliance with relieving order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 PART 4--MISCELLANEOUS 18 Compensation for non-compliance by mortgagee . . . . . . . . . . . . . . . . . . . . . 11 19 This Act in addition to other laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 20 Contracting out . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

 


 

2 Credit (Rural Finance) 21 Service of notices on each mortgagee, mortgagor or guarantor . . . . . . . . . . 12 22 Approval of forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 23 Regulation making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 24 Transitional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . 14 DICTIONARY

 


 

1995 1 A BILL 2 FOR 3 An Act to give protection to farmers against the enforcement of 4 mortgages over equipment used for farming 5 6 7

 


 

s1 4 s4 Credit (Rural Finance) The Parliament of Queensland enacts-- 1 PART 1--PRELIMINARY 2 title 3 Short 1. This Act may be cited as the Credit (Rural Finance) Act 1995. 4 5 Commencement 2. This Act commences on a day to be fixed by proclamation. 6 and dictionary 7 Definitions 3.(1) The dictionary1 in the schedule defines particular words used in this 8 Act. 9 (2) Definitions found elsewhere in the Act are signposted2 in the 10 dictionary.3 11 of this Act 12 Purpose 4.(1) The purpose of this Act is to provide some protection to farmers 13 against the enforcement of mortgages over equipment they use to carry out 14 1 In some Acts, definitions are contained in a dictionary that appears as the last schedule and forms part of the legislation--Acts Interpretation Act 1954, section 14(4). 2 Words defined elsewhere in this Act are generally signposted in the dictionary. However, if a section has a definition that only applies to the section, or a part of the section, it is generally not signposted. If this type of definition is set out in a separate subsection, the subsection is generally the last subsection of the section. 3 The signpost definitions in the dictionary alert the reader to the terms defined elsewhere in the Act and tell the reader where these definitions can be found. For example, the definition ` "relieving order" see section 16(3)', tells the reader there is a definition of the term "relieving order" in section 16(3).

 


 

s5 5 s6 Credit (Rural Finance) their farming businesses. 1 (2) The purpose is to be achieved mainly by providing for-- 2 (a) a mortgagee to give at least 30 days notice before exercising a 3 right to take possession of, or sell, farm equipment; and 4 (b) the court to make an order allowing a farmer to keep possession 5 of equipment, for up to 1 year, if the equipment is used to carry 6 out the farmer's farming business and the court considers, among 7 other things, that the farmer has a reasonable prospect of being 8 able to remedy any default. 9 applies to all persons 10 Act 5. This Act applies to all persons including the State and, so far as the 11 legislative power of the State permits, the Commonwealth and the other 12 States. 13 with jurisdiction under this Act 14 Courts 6.(1) The jurisdiction expressed to be exercisable by the court under this 15 Act in relation to a mortgage is exercisable by-- 16 (a) if proceedings in relation to the mortgage have been started in, or 17 are before, a court--that court; or 18 (b) otherwise--the court whose monetary jurisdiction is not exceeded 19 by the amount payable under the mortgage when the proceeding 20 concerned is started in the court. 21 (2) In this section-- 22 "court" includes a small claims tribunal. 23

 


 

s7 6 s8 Credit (Rural Finance) ART 2--DEFAULT NOTICE 1 P must give default notice 2 Mortgagee 7.(1) This section applies if a mortgagee has a right under a mortgage 3 over farm equipment to take possession of, or sell, the equipment. 4 (2) The mortgagee must not exercise, or purport to exercise, the right 5 unless-- 6 (a) the mortgagor has defaulted; and 7 (b) the mortgagee has given the mortgagor, and each guarantor (if 8 any), a notice (a "default notice") under this part for the default; 9 and 10 (c) the default has not been remedied by the due day stated in the 11 default notice. 12 Maximum penalty--500 penalty units. 13 for default notice 14 Requirements 8.(1) The default notice must be in the approved form. 15 (2) Unless the mortgagee reasonably believes the default is incapable of 16 being remedied, the default notice must state-- 17 (a) how the mortgagor has defaulted; and 18 (b) what the mortgagor must do to remedy the default, including, for 19 example, any amount that must be paid to the mortgagee; and 20 (c) that the mortgagee intends to take possession of, or sell, the 21 equipment on or after a stated day (the "due day") unless the 22 default is remedied; and 23 (d) that, if the mortgagor makes another default of the same type 24 before the due day that is not remedied by the due day, the 25 mortgagee may take possession of, or sell, the equipment without 26 giving another default notice under this part; and 27 (e) anything else prescribed under a regulation. 28 (3) If the mortgagee reasonably believes the default is incapable of being 29

 


 

s9 7 s 10 Credit (Rural Finance) remedied, the default notice must state-- 1 (a) how the mortgagor has defaulted; and 2 (b) that the mortgagee believes the default is incapable of being 3 remedied; and 4 (c) that the mortgagee intends to take possession of, or sell, the 5 equipment on or after a stated day (the "due day"); and 6 (d) anything else prescribed under a regulation. 7 (4) The due day must be at least 30 days after the day the notice is given 8 to the mortgagor. 9 to s 7--further default during notice period 10 Exception 9.(1) This section applies if-- 11 (a) a mortgagor defaults under a mortgage; and 12 (b) the mortgagee gives the mortgagor, and each guarantor (if any), a 13 default notice under this part for the default; and 14 (c) the mortgagor makes a further default of the same type before the 15 due day stated in the default notice for the first default; and 16 (d) the further default is not remedied by the due day stated in the 17 default notice for the first default. 18 (2) Section 74 does not apply to the mortgagee in exercising, or 19 purporting to exercise, a right under the mortgage for the further default. 20 to s 7--taking possession to protect equipment 21 Exception 10. Section 7 does not apply to a mortgagee in exercising, or purporting 22 to exercise, a right under a mortgage to take possession of farm equipment 23 if the mortgagee reasonably believes-- 24 (a) the mortgagor has removed or disposed of the equipment, or 25 intends to remove or dispose of the equipment, in contravention 26 of the mortgage; or 27 4 Section 7 (Mortgagee must give default notice)

 


 

s 11 8 s 13 Credit (Rural Finance) (b) it is necessary to take possession urgently to protect the 1 equipment. 2 exceptions to s 7 3 Other 11. Section 75 does not apply to a mortgagee in exercising, or purporting 4 to exercise, a right under a mortgage if-- 5 (a) the mortgagee reasonably believes it was induced by fraud by the 6 mortgagor to enter into the mortgage; or 7 (b) the mortgagee has unsuccessfully made all reasonable attempts to 8 find the mortgagor; or 9 (c) the court orders that the mortgagee may take possession of, or 10 sell, the equipment without complying with section 7. 11 on mortgagee to show s 7 does not apply 12 Onus 12. The onus of proving that section 7 does not apply to a mortgagee 13 because of section 10 or 11(a) or (b) is on the mortgagee. 14 PART 3--RELIEVING ORDER 15 may apply for a relieving order 16 Mortgagor 13.(1) This section applies if-- 17 (a) for a mortgage over farm equipment--the mortgagee has given 18 the mortgagor a default notice under part 2; or 19 (b) for a mortgage over equipment (whether or not it is farm 20 equipment)-- 21 (i) the mortgagee has exercised, or purported to exercise, a right 22 under the mortgage to take possession of the equipment; or 23 5 Section 7 (Mortgagee must give default notice)

 


 

s 14 9 s 15 Credit (Rural Finance) (ii) the mortgagor has defaulted under the mortgage; or 1 (iii) for another reason, the mortgagor believes the mortgagee 2 may exercise, or purport to exercise, a right under the 3 mortgage to take possession of, or sell, the equipment. 4 (2) The mortgagor may apply to the court for a relieving order if-- 5 (a) the mortgagee has not taken possession of, or sold, the equipment 6 or, if the mortgagee has taken possession of the equipment, has 7 not parted with possession of the equipment; and 8 (b) the mortgagor is a farmer who is using, or intending to use, the 9 equipment to carry out the farmer's farming business, or would 10 be using, or intending to use, the equipment to carry out the 11 farmer's farming business if the mortgagee had not taken 12 possession of the equipment. 13 of application 14 Notice 14.(1) If the mortgagor applies for a relieving order, the mortgagor must 15 immediately give a copy of the application (a "notice of application") to 16 the mortgagee. 17 (2) The court may order that the mortgagor is not required to comply 18 with subsection (1) if the court is satisfied the mortgagor has unsuccessfully 19 made all reasonable attempts to find the mortgagee. 20 (3) The order may be made on conditions. 21 of serving notice of application 22 Effect 15.(1) If the mortgagor gives a notice of application to the mortgagee, the 23 mortgagee must not, until the court orders otherwise or the application is 24 withdrawn or dismissed-- 25 (a) sell the equipment; or 26 (b) if the mortgagee does not have possession of the 27 equipment--take possession of the equipment; or 28 (c) if the mortgagee has possession of the equipment--part with its 29 possession (other than to return it to the mortgagor). 30

 


 

s 16 10 s 16 Credit (Rural Finance) Maximum penalty--500 penalty units. 1 (2) To remove any doubt, it is declared that if the mortgagee has 2 possession of the equipment when given a notice of application, the 3 mortgagee is not required by subsection (1)(c) to return the equipment. 4 may make relieving order 5 Court 16.(1) The court must decide the application by dismissing it or by 6 making a relieving order. 7 (2) In deciding the application, the court must consider-- 8 (a) whether the mortgagor has a reasonable prospect of being able to 9 remedy the stated default within 1 year after the notice day; and 10 (b) how necessary the equipment is to the mortgagor in carrying out 11 the farming business; and 12 (c) whether the mortgagor has removed, damaged or disposed of the 13 equipment, or intends to remove, damage or dispose of the 14 equipment, in contravention of the mortgage; and 15 (d) anything else the court considers relevant to making a just 16 decision. 17 (3) A "relieving order" is an order that-- 18 (a) if the mortgagee has possession of the equipment--the 19 mortgagee must return it to the mortgagor; and 20 (b) the mortgagee must not take possession of, or sell, the equipment 21 for a stated period ending not later than 1 year after the notice day. 22 (4) The court may make a relieving order on terms it considers 23 appropriate, including, for example, that the mortgagor pay any 24 enforcement expenses incurred by the mortgagee. 25 (5) In this section-- 26 "notice day" means the day the mortgagee is given the notice of application 27 or, if the court orders that the mortgagor is not required to give the 28 notice, the day the court makes that order. 29 "stated default" means-- 30 (a) if the mortgagee has given the mortgagor a default notice under 31

 


 

s 17 11 s 19 Credit (Rural Finance) part 2--the default stated in the notice; or 1 (b) otherwise--the default that is claimed by either party to have been 2 made by the mortgagor. 3 with relieving order 4 Compliance 17. A mortgagee must comply with a relieving order. 5 Maximum penalty--500 penalty units. 6 ART 4--MISCELLANEOUS 7 P for non-compliance by mortgagee 8 Compensation 18.(1) This section applies if a mortgagee contravenes section 7, 15 or 9 17.6 10 (2) On the application of the mortgagor, the court may order the 11 mortgagee to compensate the mortgagor for any loss suffered because of 12 the contravention. 13 (3) An order under subsection (2)-- 14 (a) may be made whether or not the mortgagee has been prosecuted 15 for the contravention; and 16 (b) does not affect the mortgagee's liability to be prosecuted for the 17 contravention. 18 Act in addition to other laws 19 This 19.(1) This Act is in addition to any other law about the enforcement of a 20 mortgage. 21 (2) In particular, this Act does not prevent the issue of a notice to a 22 mortgagor under other legislation. 23 6 Section 7 (Mortgagee must give default notice), section 15 (Effect of serving notice of application), section 17 (Compliance with relieving order)

 


 

s 20 12 s 24 Credit (Rural Finance) out 1 Contracting 20.(1) The following provisions of a mortgage or other instrument are 2 void-- 3 (a) a provision to avoid or modify the effect of this Act; 4 (b) a provision to have a mortgagor indemnify a mortgagee for any 5 loss or liability arising under this Act. 6 (2) A mortgagee must not be a party to a mortgage or other instrument 7 containing a provision mentioned in subsection (1). 8 Maximum penalty--100 penalty units. 9 of notices on each mortgagee, mortgagor or guarantor 10 Service 21. If a provision of this Act requires a notice to be given to a mortgagee, 11 mortgagor or guarantor, and there is more than 1 mortgagee, mortgagor or 12 guarantor for the mortgage, the notice must be given to each mortgagee, 13 mortgagor or guarantor. 14 of forms 15 Approval 22. The chief executive may approve forms for use under this Act. 16 making power 17 Regulation 23. The Governor in Council may make regulations under this Act. 18 19 Transitional 24.(1) A notice given under the Credit Act 1987, section 1087 before the 20 commencement of this section, for a default under a mortgage over farm 21 equipment, is taken to be a default notice given under part 2 of this Act.8 22 (2) If, before the commencement of this section, a mortgagor has applied 23 7 Credit Act 1987, section 108 (Restrictions on exercise of rights by credit provider or mortgagee) 8 Part 2 (Default notice)

 


 

s 24 13 s 24 Credit (Rural Finance) to a court for an order under the Credit Act 1987, section 1169 and, 1 immediately before the commencement of this section, the court had not 2 decided the application, the application is taken to have been made under 3 section 13 of this Act.10 4 (3) A court order under the Credit Act 1987, section 116 that, 5 immediately before the commencement of this section, had effect, is taken 6 to be a relieving order. 7 (4) This section is a law to which the Acts Interpretation Act 1954, 8 section 20A applies. 9 (5) This section expires 1 year after it commences. 10 11 9 Credit Act 1987, section 116 (Power to give relief against repossession of certain goods from farmers) 10 Section 13 (Mortgagor may apply for a relieving order)

 


 

14 Credit (Rural Finance) CHEDULE 1 S ICTIONARY 2 D section 3 3 "approved form" see section 22. 4 "assignee", of rights and obligations, includes a person to whom the rights 5 and obligations are passed by law. 6 "court" see section 6. 7 "default notice" see section 7(2). 8 "due day" see section 8. 9 "enforcement expenses" means expenses incurred in exercising the 10 mortgagee's rights under a mortgage arising because of the 11 mortgagor's default. 12 "equipment" includes a vehicle, machine and tool. 13 "farm equipment" means-- 14 (a) equipment of a type whose usual use is to carry out a farming 15 business; or 16 (b) anything else prescribed under a regulation to be farm equipment 17 for this Act; 18 but does not include anything prescribed under a regulation not to be 19 farm equipment for this Act. 20 21 Examples of equipment mentioned in paragraph (a)-- 22 Beehive, binder, fishing trawler, harvester, milking machine, plough, tractor. "farmer" means a person whose sole or principal business is a farming 23 business. 24 "farming business" means-- 25 (a) an agricultural, apicultural, dairy farming, horticultural, pastoral, 26 poultry keeping or viticultural business; or 27

 


 

15 Credit (Rural Finance) SCHEDULE (continued) (b) another business that involves cultivating the soil, gathering crops 1 or rearing livestock; or 2 (c) a business that involves cutting timber for sale; or 3 (d) a fishing business; or 4 (e) anything else prescribed under a regulation to be a farming 5 business for this Act; 6 but does not include anything prescribed under a regulation not to be a 7 farming business for this Act. 8 "fishing" see the Fisheries Act 1994. 9 "guarantor", for a mortgage, means a person who, under the mortgage or 10 another document given to the mortgagee, guarantees an obligation of 11 the mortgagor under the mortgage. 12 "mortgagee", for a mortgage, means-- 13 (a) the person to whom the mortgage is given (the "original 14 mortgagee"); or 15 (b) an assignee of the original mortgagee's rights and obligations 16 under the mortgage. 17 "mortgagor", for a mortgage, means-- 18 (a) the person by whom the mortgage is given (the "original 19 mortgagor"); or 20 (b) an assignee of the original mortgagor's rights and obligations 21 under the mortgage. 22 "notice of application" see section 14. 23 "relieving order" see section 16(3). 24 "vehicle" includes a motor vehicle, vehicle without motive power, boat and 25 aircraft. 26 27 State of Queensland 1995

 


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