mortgage means an instrument or transaction by or under which a security interest is reserved, created or otherwise arises; mortgagee in relation to a mortgage, means the person to whom the mortgage is given; mortgagor in relation to a mortgage, means the person by whom the mortgage is given; S. 5(1) def. of officer amended by No. 44/2001 s. 3(Sch. item 26(c)). officer in relation to a body corporate, includes a person who is an officer of the body corporate within the meaning of section 82A of the Corporations Act; pastoral finance company means a person carrying on a business of financing pastoral pursuits or a business of stock or station agents to whom an order in force under section 11 of the Banking Act 1959 of the Commonwealth as amended and in force for the time being applies; pre-determined credit charge in relation to a credit contract that specifies a fixed amount as the whole or part of the credit charge (not being a minimum credit charge), means that fixed amount; prescribed means prescribed by this Act or the regulations; property includes any thing in action and any interest in real or personal property; recognized State means a State or a Territory of the Commonwealth in respect of which a declaration referred to in section 17 is in force; record includes any book, account, document, paper or other source of information compiled, recorded or stored in written form,
severally liable to the buyer for the damages or sum of money. (2) It is a defence to proceedings arising under subsection (1) against a linked credit provider of a supplier if the linked credit provider proves— (a) that the credit provided by him to the buyer was provided as a result of an approach by the buyer to the credit provider that was not induced by the supplier; (b) where the proceedings relate to a contract of sale with respect to which a tied loan contract applies, that— (i) after due inquiry before he became such a linked credit provider, he was satisfied that the supplier was of good reputation in respect of his financial standing and ethical standards of trading; (ii) since becoming such a linked credit provider, but before the tied loan contract was entered into, he had not had cause to suspect, and had not suspected, that the buyer might be entitled to claim damages against or recover a sum of money from, the supplier for misrepresentation, breach of contract or failure of consideration as referred to in subsection (1); and (iii) since becoming such a linked credit provider, but before the tied loan contract was entered into, he had not had any cause to suspect, and had not suspected, that the supplier might be unable to meet his liabilities as and when they fell due; or
(b) where, under the credit sale contract or loan contract, registration fees relating to goods and in respect of a particular period were included in the amount financed under the credit sale contract or loan fees relating to those goods in respect of a subsequent period; (c) such other amounts as may be prescribed. (4) Where a credit provider enters into an agreement referred to in subsection (1) he shall, not later than fourteen days after the agreement is entered into, give the debtor a copy of the agreement. (5) Notwithstanding any other provision of this Act, an agreement to vary a contract in accordance with this section is not a loan contract. (6) Where a variation to which this section applies is made to the terms of a credit sale contract or a loan contract, a guarantor under a contract of guarantee in respect of the obligations of the debtor under the contract is not liable in respect of the contract for an amount exceeding the amount for which, but for the variation, he would have been liable unless the credit provider, not later than fourteen days after the variation was made, gave the guarantor a notice in writing of the variation. (7) This section does not apply to or in respect of a variation— (a) if section 37, 69 or 71 applies to or in respect of the variation; or
(i) first in payment of default charges (if any); (ii) secondly in payment of the accrued credit charge; (iii) thirdly in payment of deferral charges (if any); (iv) fourthly in payment of the outstanding balance of the amount financed; and (v) fifthly in payment of enforcement expenses; and (b) in the case of a regulated continuing credit contract— (i) first in payment of the credit charge; and (ii) secondly in payment of any other amount owed under the contract by the debtor to the credit provider. 84 Appropriation of payments between contracts A debtor who is liable to make payments in respect of two or more regulated contracts to the same credit provider shall, notwithstanding any agreement to the contrary, be entitled, on making a payment in respect of the contracts which is not sufficient to discharge the total amount then due under all the contracts, to require the credit provider to appropriate the amount so paid in or towards the satisfaction of the amount due under any one or more of the contracts, or in or towards
(2) A declaration under subsection (1) is subject to any determination affecting the regulated contract made under section 85 or 86. (3) Nothing in this section limits or excludes the jurisdiction of the Supreme Court. S. 86 amended by No. 34/1991 s. 8(1). 86 General order varying civil penalty S. 86(1) amended by No. 52/1998 s. 24(1). (1) Where a credit provider has contravened or failed to comply with this Act or the Credit (Administration) Act 1984 in respect of two or more regulated contracts, he may apply to the Tribunal for a determination under section 85 and the Tribunal, without affecting the liability of a person to be convicted of an offence under this Act or the Credit (Administration) Act 1984— (a) may make a determination under section 85 in relation to one or more specified regulated contracts; and S. 86(1)(b) amended by No. 34/1991 s. 8(2). (b) may make a determination under section 85 in relation to all regulated contracts entered into by the credit provider during a specified period; and S. 86(1)(c) inserted by No. 34/1991 s. 8(2). (c) may make a determination under section 85 in relation to all regulated contracts of a specified class entered into by the credit provider during a specified period (for example, all regulated contracts entered into during a specified period which are affected by a specified contravention or failure). S. 86(2) inserted by No. 34/1991 s. 8(2). (2) The debtors affected by an application under this section need not be identified in the application. However, the Tribunal may (if it considers that it is appropriate to do so) decline to deal with the
S. 116(4) amended by No. 52/1998 s. 24(1). (4) Where an application is made under subsection (3), the Director shall seek the views of the credit provider or mortgagee and, after giving him a reasonable opportunity to be heard and making such other inquiries as the Director thinks fit, determine whether or not to seek to negotiate the postponement to which the application relates and, where he seeks, but is unable to obtain, such a postponement, the Director shall refer the application to the Tribunal. (5) Subsection (2) applies to and in respect of a postponement negotiated under subsection (4) in the same way as it applies to and in respect of a postponement negotiated under subsection (1). S. 116(6) amended by No. 52/1998 s. 24(2). (6) The Tribunal may, where it receives an application referred to it under subsection (4), dismiss the application if it has determined similar issues under section 74 or may order or refuse to order the postponement to which the application relates and, where it orders a postponement, may make such other orders as it thinks fit. S. 116(7) amended by No. 52/1998 s. 24(1). (7) Where an order under subsection (6) is in force, the credit provider or mortgagee under the contract or mortgage to which the application relates may apply to the Tribunal for a variation of the order. S. 116(8) amended by No. 52/1998 s. 24(2). (8) The Tribunal may, where it receives an application under subsection (7), make such variation of the order to which the application relates as it thinks fit or may refuse to make such an order. (9) An order in force under this section, and such an order as varied from time to time, has effect according to its tenor. (10) Where a mortgagor commences negotiations under subsection (1) with a mortgagee after the
(iv) where the goods are, or include, a motor car, boat or other vehicle or thing required to be registered or licensed, registration fees and (unless included in the statement under paragraph (e)) amounts payable in respect of compulsory insurance; (e) amounts payable in respect of contracts of insurance (if any) entered into in relation to the contract, showing separately, in respect of each such contract the name of the insurer and— (i) where the contract relates to goods that are, or include, a motor car, boat or other vehicle or thing required to be registered or licensed, amounts so payable in respect of compulsory insurance (unless those amounts are included in a statement under paragraph (d)); (ii) where there is a mortgage relating to the contract, amounts so payable in respect of insurance of property subject to the mortgage (other than compulsory insurance included in the statement under subparagraph (i) or under paragraph (d)); Sch. 2 cl. 1(e)(iii) amended by No. 15/1987 s. 31(1)(d). (iii) where there is a mortgage relating to the contract, amounts so payable in respect of insurance against loss of the security interest of the mortgagee in any goods subject to the mortgage by reason of section 7 of the Chattel Securities Act 1987; Sch. 2 cl. 1(e)(iv) amended by No. 34/1991 s. 13(a)(i). (iv) amounts so payable in respect of insurance against sickness of, accidental injury to, or disability or death, of the debtor or against unemployment of the debtor or, where there is more than one debtor, amounts so payable in respect of such insurance in relation to the debtors; (v) amounts so payable in respect of life insurance of the debtor or, where there is more than one
(m) the amount of the credit charge in respect of the billing cycle; (n) the annual percentage rate in respect of the contract and the manner of its application to the contract; (o) where the statement of account includes a request for payment of an amount by the debtor— (i) the amount payable or the manner in which it may be ascertained from the statement; (ii) the person to whom and the place at which the amount is payable; and (iii) the date before which the amount is to be paid; (p) particulars of amounts that during the billing cycle are added to the amount payable under the contract by the debtor to the credit provider and are the consideration, or part of the consideration, for the discharge of the liability of the debtor to the credit provider under a contract in force before the first day of the billing cycle other than consideration referred to in a preceding paragraph; (q) particulars of any amount transferred to or from the account to which the statement relates from or to any other account maintained under the contract; and (r) particulars of amounts that during the billing cycle are added to the amount payable under the contract by the debtor to the credit provider in respect of the value of any consideration provided by the credit provider to the debtor, being consideration of a kind prescribed for the purposes of this paragraph, other than consideration referred to in a preceding paragraph. 2. In clause 1 of this Schedule— (a) a reference to an amount paid or owed by, or supplied to, or in respect of which credit is provided to or given by way of refund or allowance to, a debtor under a continuing credit contract at a particular time or during a particular period—