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


CONSUMER CREDIT (WESTERN AUSTRALIA) AMENDMENT BILL 1999

                           Western Australia


                      LEGISLATIVE ASSEMBLY



       Consumer Credit (Western Australia)
             Amendment Bill 1999


                               A Bill for


An Act to amend the Consumer Credit (Western Australia) Act 1996
to make changes to the Consumer Credit (Western Australia) Code.



The Parliament of Western Australia enacts as follows:


1.      Short title
        This Act may be cited as the Consumer Credit (Western
        Australia) Amendment Act 1999.




                                                                page 1
                                58--1
     Consumer Credit (Western Australia) Amendment Bill 1999



     s. 2




     2.         Commencement
                This Act comes into operation on a day fixed by proclamation.
     3.         Amendments effected by this Act
                The amendments in this Act are to the Consumer Credit
 5              (Western Australia) Code set out in the Appendix to the
                Consumer Credit (Western Australia) Act 1996*.
                [* Act No. 30 of 1996.
                   For subsequent amendments see 1998 Index to Legislation of
                   Western Australia, Table 1, p. 55.]
10   4.         Section 4 amended
                Section 4(2) is amended by inserting after "deferred." the
                following sentence --
            "
                     The "amount of credit" does not include --
15                    (a) any interest charge under the contract; or
                      (b) any fee or charge --
                             (i) that is to be or may be debited after credit
                                  is first provided under the contract; and
                            (ii) that is not payable in connection with
20                                the making of the contract or the
                                  making of a mortgage or guarantee
                                  related to the contract.
                                                                                ".
     5.         Section 7 amended
25              Section 7(9) is amended as follows:
                  (a) by deleting "providing credit" and inserting instead --
                "
                      providing credit to which this Code applies to
                      employees or former employees and to others
30                                                                              ";

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                    Consumer Credit (Western Australia) Amendment Bill 1999



                                                                                s. 6



              (b)    by deleting "credit provider provides credit" and
                     inserting instead --
          "
                    credit provider provides credit to which this Code
 5                  applies
                                                                                 ".

     6.   Section 11 amended
          Section 11(3) is amended as follows:
            (a) by deleting "(or any other person who obtained the
10               declaration" and inserting instead --
          "
                    (or any other relevant person who obtained the
                    declaration
                                                                                 ";
15            (b)    by inserting after "household purposes." the following
                     sentence --
          "
                    For the purposes of this subsection, a relevant person is
                    a person associated with the credit provider or a
20                  finance broker (or a person acting for a finance broker)
                    through whom the credit was obtained.
                                                                                 ";
              (c)    by deleting the note to subsection (3).

     7.   Section 12 amended
25        Section 12 is amended as follows:
            (a) by inserting before "A credit" the subsection
                 designation "(1)";




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     Consumer Credit (Western Australia) Amendment Bill 1999



     s. 7



                 (b)        by deleting paragraph (b) and inserting the following
                            paragraph instead --
                       "
                            (b)   a written contract document signed by the
 5                                credit provider and constituting an offer to the
                                  debtor that is accepted by the debtor in
                                  accordance with the terms of the offer.
                                                                                      ";
                 (c)        by inserting at the end the following subsections --
10          "
                (2)        An offer may be accepted by the debtor for the
                           purposes of subsection (1)(b) --
                             (a) by the debtor or a person authorized by the
                                  debtor accessing or drawing down credit to
15                                incur a liability; or
                            (b) by any other act of the debtor or of any such
                                  authorized person that satisfies the conditions
                                  of the offer and constitutes an acceptance of the
                                  offer at law.
20              (3)        The credit provider, or a person associated with the
                           credit provider, may not be authorized by the debtor for
                           the purposes of subsection (2). However, this
                           subsection does not prevent the debtor authorizing the
                           credit provider to debit the debtor's account.
25              (4)        In the case of a contract document consisting of more
                           than one document, it is sufficient compliance with this
                           section if one of the documents is duly signed and the
                           other documents are referred to in the signed
                           document.
30                                                                                    ".




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                     Consumer Credit (Western Australia) Amendment Bill 1999



                                                                                   s. 8



     8.   Section 15 amended
          Section 15 is amended as follows:
           (a)        by deleting section 15(B)(a) and inserting the following
                      paragraph instead --
 5               "
                      (a)       If the amount of credit to be provided is
                                ascertainable --
                                   (i) that amount; and
                                  (ii) the persons, bodies or agents (including
10                                      the credit provider) to whom it is to be
                                        paid and the amounts payable to each of
                                        them, but only if both the person, body
                                        or agent and the amount are
                                        ascertainable.
15                                                                                  ";
           (b)        by deleting from section 15(E) "assumptions in" and
                      inserting instead --
                      " assumptions under ";
           (c)        by deleting section 15(F)(a)(ii) and "and" after it and
20                    inserting the following subparagraphs instead --
                            "
                                 (ii)   if ascertainable, the number of the
                                        repayments; and
                                (iia)   if ascertainable, the total amount of the
25                                      repayments, but only if the contract
                                        would, on the assumptions under
                                        sections 158 and 160, be paid out within
                                        7 years of the date on which credit is
                                        first provided under the contract; and
30                                                                                  ";




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     Consumer Credit (Western Australia) Amendment Bill 1999



     s. 8



               (d)   by deleting from section 15(F)(b) "repayment." and
                     inserting instead --
                     "
                          repayment.
 5                        Paragraph (a) does not apply to minimum
                          repayments under a continuing credit contract.
                                                                              ";
               (e)   by deleting from section 15(N)(d) "premium." and
                     inserting instead --
10                   "
                          premium.
                          In the case of consumer credit insurance that
                          includes a contract of general insurance within
                          the meaning of the Insurance Contracts
15                        Act 1984 (Cwlth) --
                             (i) it is sufficient compliance with
                                  paragraphs (a) and (b) if the contract
                                  document contains the name of the
                                  general insurer and the total amount
20                                payable to the insurers (or, if it is not
                                  ascertainable, how it is calculated); and
                            (ii) it is sufficient compliance with
                                  paragraph (d) relating to the amount of
                                  commission if the contract document
25                                contains the total amount of commission
                                  (expressed as a monetary amount or as a
                                  proportion of the premium) to be paid
                                  by the insurers.
                                                                              ".




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                     Consumer Credit (Western Australia) Amendment Bill 1999



                                                                                 s. 9



     9.        Section 18 amended
               Section 18(3) is repealed and the following subsection is
               inserted instead --
           "
 5             (3)   Subsection (2) does not apply if the credit provider has
                     previously given the debtor a copy of the contract
                     document to keep.
                                                                                   ".
     10.       Section 19 amended
10             Section 19(1) is amended by deleting "unless any credit has
               been obtained or attempted to be obtained under the contract."
               and inserting instead --
               "
                     unless --
15                     (a) any credit has been obtained under the contract;
                             or
                       (b) a card or other means of obtaining credit provided
                             to the debtor by the credit provider has been used
                             to acquire goods or services for which credit is to
20                           be advanced under the contract.
                                                                                   ".
     11.       Section 21 amended
               Section 21(1)(a) is amended by deleting "fee" and inserting
               instead --
25             " credit fee ".
     12.       Section 24 amended
               Section 24(3) is repealed and the following subsection is
               inserted instead --
           "
30             (3)   Despite subsection (2), a credit provider is not required
                     to credit a payment under a credit contract before it is


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     Consumer Credit (Western Australia) Amendment Bill 1999



     s. 13



                       payable under the contract if the contract prohibits
                       early payment and --
                         (a) the credit provider informs the debtor, as soon
                               as practicable after the credit provider becomes
 5                             aware of the payment, that it will not be
                               credited to the debtor (or that any credit will be
                               reversed) until it becomes payable under the
                               contract, and the debtor elects to leave the
                               payment with the credit provider; or
10                       (b) the credit provider informs the debtor, before
                               accepting the payment, that it will not be
                               credited to the debtor until it becomes payable
                               under the contract; or
                         (c) the credit provider refunds the payment to the
15                             debtor.
                                                                                    ".
     13.         Section 25 amended
                 Section 25(2) is amended as follows:
                   (a) by inserting after "payments" --
20                       " or any other purposes ";
                   (b) by inserting after "ends." the following sentence --
                 "
                       Different times of the day may be specified for
                       different purposes.
25                                                                                  ".
     14.         Section 27 amended
                 After section 27(3) the following subsection is inserted --
             "
                 (4)   This section does not apply to the debit of an interest
30                     charge under a credit contract before the end of the
                       period to which the charge applies if --
                         (a) the charge is debited on the last day of the
                               period; and

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                  Consumer Credit (Western Australia) Amendment Bill 1999



                                                                           s. 15



                   (b)   the amount debited is not treated by the credit
                         provider as part of the unpaid daily balance for
                         that day for the purpose of calculating interest
                         charges under the contract.
 5                                                                           ".
     15.   Section 30 amended
           Section 30 is amended as follows:
             (a) in subsection (1) by deleting "in respect of an amount
                   payable" and inserting instead --
10         "
                 for an amount payable or to reimburse an amount paid
                                                                             ";
            (b)    in subsection (1) by inserting after "actual amount
                   payable" --
15                 " or paid ";
            (c)    by repealing subsection (4).
     16.   Section 31 amended
           Section 31 is amended as follows:
             (a) in subsection (3)(b) by inserting after "statement
20                period" --
                  "
                         (other than debits for government charges, or
                         duties, on receipts or withdrawals)
                                                                             ";
25          (b)    after subsection (3)(e) by deleting the full stop and
                   inserting --
                   "
                          ; or
                    (f) the debtor has died or is insolvent and the
30                        debtor's personal representative or trustee in



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     Consumer Credit (Western Australia) Amendment Bill 1999



     s. 17



                               bankruptcy has not requested a statement of
                               account.
                                                                                    ";
                  (c)    after subsection (3) by inserting the following
 5                       subsection --
             "
                 (4)    A separate statement of account may, but need not, be
                        given in respect of each or any number of the credit
                        facilities provided under a credit contract.
10                                                                                  ".
     17.         Section 32 amended
                 Section 32(I) is amended by deleting "(if not previously
                 disclosed in accordance with this Code)." and inserting
                 instead --
15               "
                       (if not previously disclosed in accordance with this
                       Code).
                        In the case of consumer credit insurance that includes a
                        contract of general insurance within the meaning of the
20                      Insurance Contracts Act 1984 (Cwlth) --
                                   (i) it is sufficient compliance with
                                        paragraph (a) if the statement of account
                                        contains the name of the general insurer,
                                        the total amount payable to the insurers
25                                      and the kind of insurance; and
                                  (ii) it is sufficient compliance with
                                        paragraph (b) if the statement of account
                                        contains the total amount of commission
                                        (expressed as a monetary amount or as a
30                                      proportion of the premium) to be paid
                                        by the insurers.
                                                                                    ".




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                          Consumer Credit (Western Australia) Amendment Bill 1999



                                                                                    s. 18



     18.        Section 34 amended
                Section 34 is amended as follows:
                    (a)    in subsection (1)(c) by inserting after "amounts" --
                           " currently ";
 5                  (b)    in subsection (1)(d) by inserting after "amount" --
                           " currently ";
                    (c)    after subsection (3) by inserting the following
                           subsection --
           "
10             (3A)       In the case of joint debtors or guarantors, the statement
                          under this section need only be given to a debtor or
                          guarantor who requests the statement and not, despite
                          section 171, to each joint debtor or guarantor.
                                                                                      ".

15   19.        Section 36 amended
                Section 36 is amended as follows:
                  (a) in subsection (4) by deleting "In any other case" and
                       inserting instead --
                "
20                        In the case of any other credit contract for which a
                          statement of account is given
                                                                                      ";
                    (b)    after subsection (4) by inserting the following
                           subsection --
25         "
               (4A)       In the case of a credit contract in respect of which a
                          statement of account need not be and is not given for
                          the period to which the disputed liability relates, the
                          notice of dispute must be given to the credit provider
30                        not later than 3 months after the end of the contract.
                                                                                      ".


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     Consumer Credit (Western Australia) Amendment Bill 1999



     s. 20



     20.       Section 36A inserted
               After section 36 the following section is inserted in Division 5
               of Part 2 --
     "

 5           36A.    Dating and adjustment of debits and credits in
                     accounts
               (1)   For the purposes of this Code and the credit contract, a
                     debit or a credit made by a credit provider to a debtor's
                     account is taken to have been made, and has effect, on
10                   the date assigned to the debit or credit, not on the date
                     on which it is processed.
               (2)   A credit provider may subsequently adjust debits or
                     credits to a debtor's account, and the account balances,
                     so as to accurately reflect the legal obligations of the
15                   debtor and the credit provider.
               (3)   However, subsections (1) and (2) do not permit a debit
                     or a credit to be assigned a date other than the date on
                     which it is processed, or the subsequent adjustment of a
                     debit or a credit or account balance, if --
20                     (a) the assignment or adjustment is not consistent
                             with the credit contract; or
                       (b) the adjustment results in an interest charge that
                             is more than the maximum amount permitted
                             by the Code, as calculated on the basis of debits
25                           or credits to a debtor's account consistent with
                             the credit contract; or
                       (c) the assignment or adjustment results in a
                             contravention of section 24; or
                       (d) the assignment of the date on which an interest
30                           charge is taken to be debited results in a debit
                             being taken to be done before a time permitted
                             under this Code.

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                         Consumer Credit (Western Australia) Amendment Bill 1999



                                                                                    s. 21



               (4)       An adjustment by a credit provider under
                         subsection (2) does not affect any liability of a credit
                         provider under Part 6.
                                                                                      ".

 5   21.       Section 37 amended
               Section 37 is amended as follows:
                 (a) by inserting before "The" the subsection
                      designation "(1)";
                (b) by inserting after "or a deferral or waiver of an amount
10                    under an existing credit contract" --
               "
                         or a postponement relating to an existing credit
                         contract
                                                                                      ";
15                 (c)    by deleting "or waiver" in the second place where it
                          occurs and inserting instead --
                          " , waiver or postponement ";
                   (d)    by deleting "or the contract" and inserting instead --
                          " or the existing credit contract ";
20                 (e)    by inserting at the end the following subsection --
           "
               (2)       In this section --
                         "existing credit contract" includes existing consumer
                              lease.
25                                                                                    ".

     22.       Section 39 amended
               Section 39 is amended as follows:
                 (a) by inserting before "If" the subsection
                      designation "(1)";



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     Consumer Credit (Western Australia) Amendment Bill 1999



     s. 23



                       (b)    by inserting at the end the following subsection --
             "
                   (2)       This section does not apply if the credit provider has
                             previously given the mortgagor a copy of the mortgage
 5                           document to keep.
                                                                                      ".

     23.           Section 44 amended
                   After section 44(4) the following subsection is inserted --
             "
10                 (5)       In this section, a reference to a credit contract or
                             guarantee includes a reference to a proposed credit
                             contract or proposed guarantee.
                                                                                      ".

     24.           Section 51 amended
15                 Section 51(1) is amended by deleting "Before the obligations
                   under a credit contract are secured by a guarantee" and inserting
                   instead --
                   "     Before a guarantee is signed by the guarantor     ".

     25.           Section 52 replaced
20                 Section 52 is repealed and the following section is inserted
                   instead --
     "

             52.             Copies of documents for guarantor
                   (1)       A credit provider must, not later than 14 days after a
25                           guarantee is signed and given to the credit provider,
                             give the guarantor --
                               (a) a copy of the guarantee signed by the
                                     guarantor; and


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                                                                              s. 26



                         (b)   a copy of the credit contract or proposed credit
                               contract.
               (2)     Subsection (1)(a) does not apply if the credit provider
                       has previously given the guarantor a copy of the credit
 5                     contract or proposed credit contract to keep.
                                                                                   ".

     26.       Section 53 amended
               Section 53(1)(b) is amended by deleting "or pre-contractual
               statement".

10   27.       Section 54 amended
               Section 54(3) is amended by deleting "does" and inserting
               instead --
               "     and section 51 (Disclosure) do   ".

     28.       Section 55 amended
15             Section 55(2) is amended by deleting "or any other act or
               omission by, or circumstance affecting, the debtor".

     29.       Section 56 amended
               Section 56(2) is repealed and the following subsection is
               inserted instead --
20         "
               (2)     This section does not apply to an increase in liabilities
                       resulting from --
                         (a) a change of a kind referred to in
                               section 58(2)(a) or (b); or
25                       (b) a change of which notice is required to be given
                               under Division 1 of Part 4 (not being a change
                               referred to in section 62(3) or 63); or
                         (c) a change under section 68(2) or a postponement
                               under section 88(2); or

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     Consumer Credit (Western Australia) Amendment Bill 1999



     s. 30



                           (d)    a deferral or waiver of a debtor's obligations
                                  for a period not exceeding 90 days.
                                                                                       ".

     30.          Section 59 amended
 5                Section 59(4) is amended by deleting "30 days" and inserting
                  instead --
                  "     20 days   ".

     31.          Section 60 amended
                  Section 60 is amended as follows:
10                  (a) in subsection (1) by deleting "30 days" and inserting
                         instead --
                         " 20 days ";
                   (b) after subsection (2) by inserting the following
                         subsections --
15           "
                 (2A)     If the amount or frequency or time for payment of
                          instalments or minimum repayments is not specified in
                          the credit contract but is determined by a method of
                          calculation so specified, this section requires the credit
20                        provider to give particulars only of any change in that
                          method of calculation.
                 (2B)     This section does not apply to a change that occurs
                          while the credit contract does not require any
                          repayment of the amount of credit provided.
25                                                                                     ".

     32.          Section 61 amended
                  Section 61(1) is amended by deleting "30 days" and inserting
                  instead --
                  "     20 days   ".


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                                                                                s. 33



     33.     Section 63 amended
             Section 63 is amended as follows:
                  (a)    in subsection (1) by deleting "30 days" and inserting
                         instead --
 5                       " 20 days ";
                  (b)    in subsection (3) by inserting after "section 59, 60, 61 or
                         62" --
             "
                        (or which would be required to be so given but for an
10                      exception provided in any such section)
                                                                                    ".

     34.     Section 63A inserted
             After section 63 the following section is inserted --
     "

15         63A.         Particulars of matters as changed only required to
                        be given under this Division in certain cases
                        The credit provider may, under section 59, 60, 61 or
                        63, give a person particulars only of a matter as
                        changed instead of particulars of the change, but only if
20                      the credit provider --
                          (a) makes it clear to the person that the matter has
                                changed; or
                          (b) issues to the person a new set of terms and
                                conditions relating to the credit contract,
25                              mortgage or guarantee.
                                                                                    ".




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     Consumer Credit (Western Australia) Amendment Bill 1999



     s. 35



     35.         Section 65 amended
                 Section 65 is amended as follows:
                  (a)    in subsection (1) by deleting "within 30 days" and
                         inserting instead --
 5                       " not later than 30 days ";
                  (b)    in subsection (3) by inserting after "credit contract" --
                         " (other than a continuing credit contract) ";
                  (c)    by inserting after subsection (4) the following
                         subsection --
10           "
                 (5)    The credit provider may, under subsection (1), give a
                        person particulars only of a matter as changed instead
                        of particulars of the change, but only if the credit
                        provider --
15                        (a) makes it clear to the person that the matter has
                                changed; or
                          (b) issues to the person a new set of terms and
                                conditions relating to the credit contract,
                                mortgage or guarantee.
20                                                                                  ".

     36.         Section 67 amended
                 Section 67 is amended as follows:
                   (a) by inserting before "A credit" the subsection
                        designation "(1)";
25                (b) by deleting "within 30 days" and inserting instead --
                        " not later than 30 days ";
                   (c) by inserting at the end the following subsection --
             "
                 (2)    The credit provider may, under subsection (1), give a
30                      person particulars only of a matter as changed instead


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                     Consumer Credit (Western Australia) Amendment Bill 1999



                                                                              s. 37



                     of particulars of the change, but only if the credit
                     provider --
                       (a) makes it clear to the person that the matter has
                             changed; or
 5                     (b) issues to the person a new set of terms and
                             conditions relating to the credit contract.
                                                                                  ".

     37.       Section 73 amended
               Section 73 is amended as follows:
10               (a) in subsection (1) by deleting "the credit provider writes
                      off the relevant debt, whichever occurs first" and
                      inserting instead --
                      " otherwise comes to an end ";
                (b) in subsection (2) by deleting "the credit provider writes
15                    off the relevant debt, whichever occurs first" and
                      inserting instead --
               "
                     the credit contract is rescinded or discharged or
                     otherwise comes to an end
20                                                                                ".

     38.       Section 76 amended
               Section 76 is amended by inserting after the penalty at the foot
               of subsection (3) the following subsection --
           "
25             (4)   In the case of joint debtors or guarantors, the statement
                     under this section need only be given to a debtor or
                     guarantor who requests the statement and not, despite
                     section 171, to each joint debtor or guarantor.
                                                                                  ".




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     Consumer Credit (Western Australia) Amendment Bill 1999



     s. 39



     39.       Section 78 amended
               Section 78 is amended as follows:
                   (a)    in subsection (7) by deleting "total amount payable
                          under the contract" and inserting instead --
 5                        " amount required to pay out the contract ";
                   (b)    in subsection 8(a) by inserting after "contract" in the
                          second place where it occurs --
                          " or guarantee ";
                   (c)    after subsection (8)(d) by deleting the full stop and
10                        inserting instead --
                          "
                                 ;
                           (e)   the expenses reasonably incurred by the credit
                                 provider in connection with the possession and
15                               sale of the mortgaged goods.
                                                                                 ";
                   (d)    in subsection (9) by deleting "net amount due under the
                          credit contract" and inserting instead --
               "
20                       amount required to pay out the credit contract or the
                         amount due under the guarantee
                                                                                    ".

     40.       Section 80 amended
               Section 80 is amended as follows:
25               (a) in subsection (3) by deleting "during the period of
                      30 days" and inserting instead --
               "
                         during the period specified in the default notice for
                         remedying the original default
30                                                                                  ";


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                          Consumer Credit (Western Australia) Amendment Bill 1999



                                                                                 s. 41



                    (b)    by inserting after subsection (3) the following
                           subsection --
           "
               (3A)       Combined notices. Default notices that may be given
 5                        under subsections (1) and (2) may be combined in one
                          document if given to a person who is both a debtor and
                          a mortgagor.
                                                                                    ";
                    (c)    in subsection (4)(c) by deleting "to do so" and inserting
10                         instead --
                           " to begin the enforcement proceedings ";
                    (d)    in subsection (6) by inserting after "property" --
                           " or other ";
                    (e)    in subsection (6) by deleting the second sentence and
15                         inserting instead --
                "
                          Nothing in this section prevents a notice to a defaulting
                          mortgagor under other legislation being issued at the
                          same time, or in the same document, as the default
20                        notice under this section.
                                                                                      ".

     41.        Section 86 amended
                Section 86(2) is amended by deleting "under" and inserting
                instead --
25              "     in respect of ".

     42.        Section 87 amended
                Section 87 is amended as follows:
                  (a) in subsection (1) by deleting ", written notice of the
                       conditions of postponement is given to the debtor,
30                     mortgagor or guarantor";

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     Consumer Credit (Western Australia) Amendment Bill 1999



     s. 43



                     (b)    by inserting after subsection (2) the following
                            subsections --
             "
                 (3)       A credit provider must give written notice of the
 5                         conditions of a postponement referred to in
                           subsection (1) not later than 30 days after agreement is
                           reached on the postponement. The notice must set out
                           the consequences under subsection (5) if the conditions
                           of the postponement are not complied with.
10                         Penalty: $10 000.
                 (4)       A credit provider that is required to give notice under
                           section 65 in relation to a postponement is not required
                           to comply with subsection (3).
                 (5)       If any of the conditions of a postponement are not
15                         complied with, a credit provider is not required to give
                           a further default notice under this Code to the debtor,
                           mortgagor or guarantor with whom the postponement
                           was negotiated before proceeding with enforcement
                           proceedings.
20                                                                                    ".

     43.         Section 96 amended
                 Section 96 is amended as follows:
                     (a)    in subsection (2) by deleting "total amount payable
                            under the contract" and inserting instead --
25                          " amount required to pay out the contract ";
                     (b)    in subsection (3) by deleting "net amount due under the
                            credit contract" and inserting instead --
                 "
                           amount required to pay out the credit contract or the
30                         amount due under the guarantee
                                                                                      ".


     page 22
                     Consumer Credit (Western Australia) Amendment Bill 1999



                                                                             s. 44



     44.       Section 98 amended
               Section 98(1) is amended by inserting after "practicable" --
               "
                     , or at a time agreed between the credit provider and
 5                   the mortgagor,
                                                                                 ".
     45.       Section 99 amended
               Section 99 is amended as follows:
                 (a) in subsection (1) by inserting after "the credit provider."
10                     the following sentence --
               "
                     Enforcement expenses of a credit provider extend to
                     those reasonably incurred by the use of the staff and
                     the facilities of the credit provider.
15                                                                             ";
                 (b) by repealing subsection (3) and inserting the following
                       subsection instead --
           "
               (3)   If there is a dispute between the credit provider and the
20                   debtor, mortgagor or guarantor about the amount of
                     enforcement expenses that may be recovered by the
                     credit provider, the Court may, on application by any
                     of the parties to the dispute, determine the amount of
                     that liability.
25                                                                               ".
     46.       Section 100 amended
               Section 100 is amended as follows:
                 (a) by deleting paragraph (1)(e) and inserting instead --
                    "
30                     (e) section 15(G)(a) and (b) -- but only in respect
                            of retained credit fees and charges;
                                                                                 ";

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     s. 47



                     (b)        by deleting paragraph (2)(d) and inserting instead --
                           "
                                (d)     section 15(G)(a) and (b) -- but only in respect
                                        of retained credit fees and charges;
 5                                                                                         ".
     47.         Section 117 amended
                 Section 117(3) is amended by inserting after "credit contract" in
                 the first place where it occurs --
                 "     (other than a continuing credit contract)        ".
10   48.         Section 119 amended
                 Section 119(1) is amended by inserting after "in relation to
                 the" --
                 "     sale        ".
     49.         Section 124 amended
15               Section 124 is amended by inserting after subsection (3) the
                 following subsection --
             "
                 (4)           This section does not apply to a sale contract for the
                               supply of rights in relation to, and interests in, real
20                             property unless the supplier was aware that the purchaser
                               intended to obtain the credit from the supplier or from a
                               linked credit provider of the supplier.
                                                                                           ".
     50.         Section 125 amended
25               Section 125 is amended by inserting after subsection (7) the
                 following subsection --
             "
                 (8)           This section applies --
                                (a) to the exercise by a purchaser of a right under
30                                     this Code or any other law to rescind or
                                       discharge a sale contract; and

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                                                                             s. 51



                    (b)   to a tied loan contract or a tied continuing credit
                          contract, but only if the sale contract was the
                          principal purpose for which the credit was
                          provided.
 5                                                                              ".

     51.     Section 132 replaced
             Section 132 is repealed and the following section is inserted
             instead --
     "
10         132.    Interpretation and application
             (1)   For the purposes of this Code, a "credit-related
                   insurance contract" is a contract for insurance of any
                   of the following kinds in connection with a credit
                   contract --
15                   (a) insurance over mortgaged property;
                     (b) consumer credit insurance;
                     (c) insurance of a nature prescribed for the
                           purposes of this section by the regulations.
             (2)   This Code does not apply to insurance over mortgaged
20                 property that --
                     (a) is insurance for an extended period of warranty
                          for goods; or
                     (b) is insurance over property that is not mortgaged
                          to secure obligations under the credit contract.
25           (3)   This Code does not apply to consumer credit insurance
                   in connection with a credit contract unless the contract
                   for consumer credit insurance insures the obligations of
                   the debtor under the credit contract.
                                                                                ".




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     s. 52



     52.         Section 134 amended
                 Section 134(1) is amended by deleting the second sentence.

     53.         Section 138 amended
                 Section 138 is amended as follows:
 5                 (a) in subsection (4) by inserting after "section" --
                 "
                           , including the rebate payable where this section does
                           not apply to the whole of a credit-related insurance
                           contract
10                                                                                    ";
                     (b)    after subsection (5) by inserting the following
                            subsection --
             "
                 (6)       This section does not apply to a credit-related
15                         insurance contract, to the extent that it provides a
                           benefit in the event of the death of the debtor, if a
                           credit contract is terminated on the death of a debtor.
                           However, it does apply to the credit-related insurance
                           contract to the extent that it provides other benefits.
20                                                                                    ".

     54.         Section 140 amended
                 Section 140(3) and (4) are repealed and the following
                 subsections are inserted instead --
             "
25               (3)       Annual percentage rate. The advertisement need not
                           contain an annual percentage rate, but must do so if the
                           advertisement states the amount of any repayment. If
                           the advertisement contains an annual percentage rate
                           and credit fees and charges are payable, the
30                         advertisement must --
                             (a) state that fees and charges are payable; or

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                                                                           s. 55



                     (b)   specify the amount of the fees and charges
                           payable; or
                     (c)   specify the amount of some of the fees and
                           charges payable and state that other fees and
 5                         charges are payable.
           (4)     Comparison rate. The advertisement may contain the
                   comparison rate calculated as prescribed by the
                   regulations and, if it does so, must be accompanied by
                   the warnings set out in the regulations.
10                                                                           ".

     55.   Section 143 amended
           Section 143 is amended by deleting "the annual percentage rate
           or rates" and inserting instead --
           "     expressed as a nominal percentage rate per annum     ".

15   56.   Section 146 amended
           Section 146(1) is amended by deleting "the person." and
           inserting instead --
           "     a person who resides there.   ".

     57.   Section 152 amended
20         Section 152(1)(c) is amended by inserting after "government
           charge" --
           "     (other than on receipts or withdrawals)   ".

     58.   Section 153 amended
           Section 153 is amended as follows:
25           (a) by inserting before "A lessor" the subsection
                  designation "(1)";




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     s. 59



                     (b)    by inserting after the penalty the following
                            subsections --
             "
                 (2)       Subsection (1) does not apply if the lessor has
 5                         previously given the lessee a copy of the consumer
                           lease to keep.
                 (3)       Section 171 applies to this section as if references in
                           that section to the credit provider were references to the
                           lessor or a lease broker and as if references in that
10                         section to the debtor were references to the lessee.
                                                                                        ".

     59.         Section 166 amended
                 Section 166(3) is amended by inserting after "debtor" --
                 "
15                         , or would continue to do so if the debtor complied
                           with the credit contract
                                                                                        ".

     60.         Section 169A inserted
                 After section 169 the following section is inserted --
20   "
             169A.         Indemnities
                 (1)       An indemnity for any liability under this Code is not
                           void, and cannot be declared void, on the grounds of
                           public policy, despite any rule of law to the contrary.
25               (2)       The liabilities to which this section applies include the
                           following --
                             (a) a liability for any criminal or civil penalty
                                   incurred by any person under this Code;
                             (b) a payment in settlement of a liability or alleged
30                                 liability under this Code;

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                                                                                            s. 61



                       (c)    a liability under another indemnity for any
                              liability under this Code.
             (3)    This section is subject to section 169(2).
             (4)    This section does not derogate from any other rights
 5                  and remedies that exist apart from this section.
             (5)    This section extends to any indemnity obtained before
                    the commencement of this section.
                                                                                               ".

     61.     Section 171 replaced
10           Section 171 is repealed and the following section is inserted
             instead --
     "
           171.     Giving notice or other document
             (1)    Application. This section applies as follows --
15                     (a)    This section applies (subject to this subsection)
                              to notices or other documents that are required
                              to be given for the purposes of this Code.
                       (b)    This subsection and subsections (3) and (7)
                              apply, but the remainder of this section does not
20                            apply, to pre-contractual notices and statements
                              and notices given under section 14.
                       (c)    Subsections (4), (5) and (6) do not apply to
                              default notices.
                       (d)    This section applies despite the provisions of
25                            any other section of this Code (except
                              sections 34(3A) and 76(4)) to the contrary.
             Note: Examples of notices or other documents to which this section applies are those
                    required to be given under sections 18, 31, 34, 39, 51, 52 and 76.




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     s. 61



               (2)   Unsuccessful attempts by credit provider. A credit
                     provider is relieved from the obligation to give a notice
                     or other document to a person if --
                       (a) the credit provider has previously made a
 5                           reasonable (but unsuccessful) attempt to give a
                             notice or other document in accordance with
                             this Code by leaving it at, or by sending it by
                             post, telex, facsimile or similar facility to the
                             appropriate address of the person under
10                           section 172; and
                       (b) the credit provider has reasonable grounds for
                             believing that the person can no longer be
                             contacted at that address.
               (3)   Joint debtors etc. -- general obligation. In the case
15                   of joint debtors, mortgagors or guarantors, a notice or
                     other document must be given to each debtor,
                     mortgagor or guarantor, except as provided by this
                     section.
               (4)   Joint debtors etc. -- nomination of one of them.
20                   A notice or other document may be given to any 2 or
                     more joint debtors, mortgagors or guarantors by being
                     given to one of the joint debtors, mortgagors or
                     guarantors nominated by them to receive the notice or
                     other document on their behalf. The notice or other
25                   document need not be addressed to all of them.
               (5)   Joint debtors etc. -- same address. A single copy of
                     a notice or other document may be given to any 2 or
                     more joint debtors, mortgagors or guarantors at the
                     same address if each of them has consented to a single
30                   copy being given and the notice or other copy is
                     addressed jointly to them. The procedure prescribed by
                     this subsection is an alternative to the procedure
                     prescribed by subsection (4).



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                                                                         s. 62



           (6)   Nominated persons generally. A notice or other
                 document may be given to a person by being given to
                 another person nominated by the person to receive the
                 notice or other document on his or her behalf.
 5               However --
                   (a) a debtor, mortgagor or guarantor cannot
                         nominate the credit provider or a person
                         associated with the credit provider; and
                   (b) a mortgagor cannot nominate the debtor if the
10                       mortgage is given by a guarantor; and
                   (c) a guarantor cannot nominate the debtor.
           (7)   Legal practitioners. A notice or other document may
                 be given to a person by being given to a legal
                 practitioner acting for the person in the matter
15               concerned.
           (8)   Withdrawal of nomination or consent. A nomination
                 or consent under this section ceases to have effect if it
                 is withdrawn by the person who made or gave it.
           (9)   Form of nomination or consent. A nomination or
20               consent under this section (or the withdrawal of any
                 such nomination or consent) must be in the form
                 required by the regulations.
                                                                             ".

     62.   Section 172 amended
25         Section 172 is amended as follows:
             (a) in subsection (1)(a)(ii) by deleting "the address of the
                  place of residence or business of the person last known
                  to the person giving the notice or other document" and
                  inserting instead --
30                " an appropriate address of the person ";
            (b) by renumbering subsection (2) as subsection (4);


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     Consumer Credit (Western Australia) Amendment Bill 1999



     s. 63



                  (c)    by renumbering subsection (3) as subsection (5);
                  (d)    by inserting after subsection (1) the following
                         subsections --
             "
 5               (2)    The appropriate address of a debtor, mortgagor,
                        guarantor or consumer lessee for the purposes of
                        subsection (1) is --
                          (a) an address nominated in writing by that person to
                                the person giving the notice or other document; or
10                        (b) if there is no such nomination, the address of the
                                place of residence of that person last known to the
                                person giving the notice or other document.
                 (3)    An appropriate address of any other person for the
                        purposes of subsection (1) is --
15                        (a) an address nominated in writing by that person
                               to the person giving the notice or other
                               document; or
                         (b) the address of the place of residence or business
                               of that person last known to the person giving
20                             the notice or other document.
                                                                                      ".
     63.         Section 176 amended
                 Section 176 is amended as follows:
                   (a) in subsection (2) by inserting after "person's behalf." the
25                       following sentence --
                 "
                       This subsection does not prevent a credit provider from
                       authorizing a person associated with the credit provider
                       to enter into a credit contract on behalf of the credit
30                     provider.
                                                                                 ";
                   (b) by repealing subsection (4).


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                       Consumer Credit (Western Australia) Amendment Bill 1999



                                                                                   s. 64



     64.         Section 182A inserted
                 After section 182 the following section is inserted --
     "
             182A.    Offences by officers, agents or employees
 5                    An officer, agent or employee of a credit provider or
                      other person may be prosecuted for an offence against
                      this Code or the regulations (if liable for the offence)
                      whether or not proceedings have been taken against the
                      credit provider or other person.
10                                                                                     ".

     65.         Schedule 1 amended
           (1)   Schedule 1 is amended by inserting before "In this Code" the
                 clause designation "1.".
           (2)   Schedule 1 is amended by deleting the definitions of "ordinarily
15               resident" and "predominant".
           (3)   Schedule 1 is amended after the definition of "regulation" by
                 inserting the following definition --
             "
                      "retained fees and credit charges" means credit fees and
20                         charges retained by the credit provider, other than
                           credit fees and charges passed on to (or retained in
                           reimbursement of an amount paid to) --
                           (a)   a third party that is not a related body corporate
                                 (for the purposes of the Corporations Law) of the
25                               credit provider; or
                           (b)   a financial institution that is such a related body
                                 corporate in respect of the provision of banking
                                 services that are provided to the credit provider
                                 by the financial institution on the same terms as
30                               those services are ordinarily provided to
                                 customers who are not related to or associated
                                 with the financial institution.
                                                                                       ";

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     Consumer Credit (Western Australia) Amendment Bill 1999



     s. 65



        (4)       Schedule 1 is amended in the definition of "credit fees and
                  charges" as follows:
                    (a) by deleting paragraph (b) and inserting the following
                         paragraph instead --
 5                        "
                              (b)         any fees or charges that are payable to or by a
                                          credit provider in connection with a credit
                                          contract in connection with which both credit
                                          and debit facilities are available if the fees or
10                                        charges would be payable even if credit facilities
                                          were not available (not being annual fees or
                                          charges in connection with continuing credit
                                          contracts under which credit is ordinarily
                                          obtained only by the use of a card); or
15                                                                                             ";
                   (b)    in paragraph (c) by deleting "and duties" and inserting
                          instead --
                          " or duties ";
                   (c)    after paragraph (c) by inserting the following word and
20                        paragraph --
                          "
                                    or
                                    (d)       enforcement expenses;
                                                                                               ".
25      (5)       At the end of Schedule 1 the following clause is inserted --
              "
                   2.    For the purposes of this Code, a person is "associated" with
                         a credit provider if --
                           (a)      the person and the credit provider are related bodies
30                                  corporate for the purposes of the Corporations Law;
                                    or
                           (b)      the person is a supplier in respect of whom the
                                    credit provider is a linked credit provider; or

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Consumer Credit (Western Australia) Amendment Bill 1999



                                                            s. 65



 (c)   the person is an officer, agent or employee of the
       credit provider, or of any such related body
       corporate or supplier, acting in that capacity.
                                                              ".




 


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