Document ID: chunk:federal_register_of_legislation:C2024C00826:clause:1_113:p1
Version: federal_register_of_legislation:C2024C00826
Segment Type: clause
Provision Reference: sch 1 cl 113 (pt 1/2)
Character Range: 921445–924183

113  Penalty may be imposed for contravention of key requirement

Declaration as to key requirement
 (1) The court must, on an application being made, by order declare whether or not the credit provider or lessor has contravened a key requirement in connection with the credit contract or contracts concerned, or consumer lease or leases concerned.

Penalty orders
 (2) The court may make an order, in accordance with this Division, requiring the credit provider or lessor to pay an amount as a penalty, if it is of the opinion that the credit provider or lessor has contravened a key requirement.

Prudential standing
 (3) The court, in considering the imposition of a penalty, must have regard primarily to the prudential standing of:
 (a) any credit provider or lessor concerned; or
 (b) any subsidiary of the credit provider or lessor (within the meaning of the Corporations Act 2001);
if the credit provider, lessor or subsidiary takes deposits or is a borrowing corporation (within the meaning of that Act). However, the court is to have regard to that prudential standing only if the credit provider or lessor requests the court to do so.

Other matters to be considered
 (4) The court, in considering the imposition of a penalty, must have regard to the following:
 (a) in the case of a credit contract—the conduct of the credit provider and debtor before and after the credit contract was entered into;
 (aa) in the case of a consumer lease—the conduct of the lessor and lessee before and after the consumer lease was entered into;
 (b) whether the contravention was deliberate or otherwise;
 (c) the loss or other detriment (if any) suffered by the debtor or lessee as a result of the contravention;
 (d) when the credit provider or lessor first became aware, or ought reasonably to have become aware, of the contravention;
 (e) any systems or procedures of the credit provider or lessor to prevent or identify contraventions;
 (f) whether the contravention could have been prevented by the credit provider or lessor;
 (g) any action taken by the credit provider or lessor to remedy the contravention or compensate the debtor or lessee or to prevent further contraventions;
 (h) the time taken to make the application and the nature of the application;
 (i) any other matter the court considers relevant.

Related contraventions
 (5) The court must, for the purposes of determining an application for an order under this Division or the amount of a penalty, treat a contravention of a key requirement that occurs merely because of another contravention of a key requirement as being a contravention of the same kind. If a provision referred to in section 111 contains several requirements, the court must treat contraventions of