Consumer Credit (Victoria) and Other Acts Amendment Act 2008

Consumer Credit (Victoria) and Other Acts Amendment Act 2008

No. 6 of 2008

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Consumer Credit (Victoria) Act 1995

3Director may bring proceedings in a court instead of Tribunal

4New section 9A inserted

9ADefinitions

5Exemptions

6New sections 12A and 12B inserted

12ARegistered credit provider to be member of approved EDR scheme

12BEligibility for registration

7Applications for registration

8Repeal of section 13(4)

9New sections 14A, 14B, 14C and 14D inserted

14AChange to information provided in an application for registration

14BConsideration of application

14CReferral of applications to Director

14DReferral of applications to Chief Commissioner

10Registration

11New section 19 substituted

19Register of Credit Providers

12Inspection of the Register

13Notice of changes of information on Register

14Credit provider to affirm eligibility

15New section 24A inserted

24AAuthority may inquire into statements

16New sections 27A, 27B and 27C inserted

27AAutomatic cancellation of registration

27BPermission to be registered or to continue to be registered

27CConditions on permission

17Inquiry by Tribunal

18Section 35 substituted

35Death or disability of registered credit provider

19New section 35A inserted

35AApplication for review

20Penalty units

21References to Registrar

22Statute law revision

23Repeal of Part 7

24New sections 51 to 55 inserted

51Current registered credit providers

52Notice to Authority

53Applications made but not determined

54Preservation of information in the Register of Credit Providers

55Applications for review by the Tribunal

25Repeal of Schedule 1

Part 3—Credit (Administration) Act 1984

26New sections 13 and 14 inserted

13Powers of the Director in relation to proceedings on behalf of consumers

14Proceedings and costs

Part 4—Fair Trading Act 1999

27New Part 5A inserted

Part 5A—Fair Reporting

93ADefinitions

93BCorrection of errors

93CConsumer may apply to court where agent fails to correct information etc.

93DPowers of Court on application

Part 5—Residential Tenancies Act 1997

28Act applies to rent-to-buy contracts

Part 6—Sale of Land Act 1962

29Definitions

30Repeal of sections 3 to 7

31Section 14 substituted

14Certain agreements void

32Section 29 substituted

29Effect on terms contract deposit provisions

33New Division 4 of Part I inserted

Division 4—Terms contracts

Subdivision 1—Introductory

29AWhat is a terms contract?

Subdivision 2—Certain terms contracts prohibited

29BWhich terms contracts are prohibited?

29CExceptions to prohibition

29DWhen is a person presently entitled to become the registered proprietor?

29EMistakes or mis-statements as to description

29FPurchaser may avoid prohibited terms contract

29GCertain provisions of terms contract void

Subdivision 3—Transfer and mortgage back

29HPurchaser may call for a transfer on giving a mortgage back

29IWhat must the mortgage provide

29JFailure of vendor to comply with requirement

29KSubdivision to apply despite Trustee Act 1958 and
other Acts

29LArbitrator may determine questions

Subdivision 4—Mortgages and terms contracts

29MRestrictions on sale of land

29NPurchaser may avoid contract

29OException if mortgage to be discharged

29PLand subject to a terms contract not to be mortgaged
by vendor

29QVendor may require purchaser to execute mortgage

29RVendor to advance amount for duty payable

29SContravention of mortgage requirements

29TFailure by purchaser to comply with notice

29UArbitrator may determine questions

29VConstructive notice

Subdivision 5—Restrictions on legal practitioners

29WLegal practitioner not to act for both vendor and purchaser under a terms contract

34Repeal of section 33

35Statute law revision

Part 7—Amendments and Repeals

36Amendment of Business Licensing Authority Act1998

37Amendment of Subdivision Act 1988

38Amendment of Transfer of Land Act 1958

39Repeal of Credit Reporting Act 1978

40Repeal of Amending Act

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Endnotes

SectionPage

Victoria

SectionPage

Consumer Credit (Victoria) and Other Acts Amendment Act 2008[†]

No. 6 of 2008

[Assented to 18 March 2008]

Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008

The Parliament of Victoriaenacts:

Part 7—Amendments and Repeals

Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008

Part 1—Preliminary

1Purposes

The main purposes of this Act are—

(a)to amend the Consumer Credit (Victoria) Act 1995—

(i)in relation to the registration of credit providers; and

(ii)to allow certain proceedings under the Consumer Credit (Victoria) Code to be brought in a court rather than VCAT if the Director of Consumer Affairs Victoria so determines; and

(b)to amend the Credit (Administration) Act 1984 to empower the Director of Consumer Affairs Victoria to bring proceedings on behalf of consumers under the Consumer Credit (Victoria) Code or Division 5 of Part4A of the Consumer Credit (Victoria) Act 1995; and

(c)to amend the Fair Trading Act 1999to reenact certain provisions of the Credit Reporting Act 1978 relating to the correction of errors in credit records; and

(d)to amend the Residential Tenancies Act 1997 to provide that certain agreements are to be tenancy agreements even if the rental term exceeds 5 years if the tenant also has a right or option to purchase the rented premises; and

(e)to amend the Sale of Land Act 1962 to reenact with amendments the provisions relating to terms contracts; and

(f)to repeal the Credit Reporting Act 1978.

2Commencement

s. 2

(1)This Act (except for sections 4to 24and Parts5 and 6) comes into operation on the day after the day on which it receives Royal Assent.

(2)Subject to subsection (3), sections 4 to 24 and Parts 5 and 6 come into operation on a day or days to be proclaimed.

(3)If a provision referred to in subsection (2) does not come into operation before 1 July 2009, it comes into operation on that day.

s. 2

______

Part 2—Consumer Credit (Victoria) Act 1995

3Director may bring proceedings in a court instead of Tribunal

s. 3

See:
Act No.
41/1995.
Reprint No. 2
as at
24 February 2000
and amending
Act Nos
11/2001, 44/2001, 10/2004, 10/2005 and 17/2007.
LawToday:
www.
legislation.
vic.gov.au

(1)In section 8(1)(a) of the Consumer Credit (Victoria) Act 1995before "in the case of" insert "except in relation to proceedings in respect of which a determination is made under subsection(1A),".

(2)After section 8(1)(a) of the Consumer Credit (Victoria) Act 1995 insert—

"(ab)in the case of proceedingsin respect of which a determination is made under subsection (1A), only a court; or".

(3)After section 8(1) of the Consumer Credit (Victoria) Act 1995 insert—

"(1A)The Director may determine to bring proceedings (other than proceedings on behalf of any other person) that the Director is empowered to bring under a provision of the Code referred to in subsection (1)(a) in a court instead of the Tribunal if the Director considers that—

(a)it is in the public interest to do so; and

(b)given the nature and circumstances of the case, it would be more appropriately dealt with by a court.

(1B)Subsection (1A) applies only to proceedings commenced after the commencement of section 3 of the Consumer Credit (Victoria) and Other Acts Amendment Act 2008.".

4New section 9A inserted

s. 4

In Part 4 of the Consumer Credit (Victoria) Act 1995 before section 10insert—

"9ADefinitions

(1)In this Part—

approvedEDR scheme means—

(a)an external dispute resolution scheme that is approved by the Australian Securities and Investments Commission in accordance with section 912A(2)(b) of the Corporations Act; or

(b)a dispute resolution scheme prescribed by the regulations to be an approved EDR scheme for credit providers;

associate, in relation to a person, means—

(a)a spouse or domestic partner of the person, other than a spouse or domestic partner—

(i)who is not, and has never been, involved in the person's business of providing credit; or

(ii)who will not be involved in the person's proposed business of providing credit; or

(b)if the person is a body corporate, a director of the body corporate;

disqualifying offence means an offence involving fraud, dishonesty, violence or drug trafficking punishable on conviction by—

(a)in the case of a natural person, imprisonment for 3 months or more (whether or not in addition to a fine); or

(b)in the case of a body corporate, a fine of 100 penalty units or more;

domestic partner of a person means an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—

s. 4

(a)for fee or reward; or

(b)on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);

relevant businessmeans the business of—

(a)providing credit; or

(b)finance broking; or

(c)providing financial services within the meaning of the Corporations Act;

relevant licence or registration means—

(a)a licence or registration as a credit provider under the law of another State or of a Territory; or

(b)a licence or registration as a finance broker under the law of any Australian jurisdiction; or

(c)an Australian financial services licence under the Corporations Act;

spouse of a person means a person to whom the person is married.

(2)For the purposes of the definition of domestic partner in subsection (1)—

(a)in determining whether persons are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 275(2) of the Property Law Act 1958 as may be relevant in a particular case;

(b)a person is not a domestic partner of another person only because they are co-tenants.".

5Exemptions

s. 5

(1)In section 12(1)(c) of the Consumer Credit (Victoria) Act 1995for "Life Insurance Act 1945"substitute "Life Insurance Act 1995".

(2)Section 12(1)(f) of the Consumer Credit (Victoria) Act 1995 is repealed.

6New sections 12A and 12Binserted

s. 6

After section 12 of the Consumer Credit (Victoria) Act 1995 insert—

"12ARegistered credit provider to be member of approved EDR scheme

A registered credit provider must not carry on business as a credit provider unless the registered credit provider is a member of an approved EDR scheme.

Penalty:120 penalty units, in the case of a natural person;

600 penalty units, in the case of a body corporate.

12BEligibility for registration

A person is not eligible to be registered as a credit provider under this Part—

(a)if the person is a represented person within the meaning of the Guardianship and Administration Act 1986; or

(b)if the person is a body corporate, if a director of the body corporate is a represented person within the meaning of the Guardianship and Administration Act 1986; or

(c)if the person is an insolvent under administration or an externally-administered body corporate; or

(d)if the person is a body corporate, if a director of the body corporate is an insolvent under administration; or

(e)if the person haswithin the preceding 5years in Australia or elsewhere, been convicted or found guilty of a disqualifying offence; or

(f)if an associate of the person or, if the person is a body corporate, an associate of a director of the body corporate has, within the preceding 5 years in Australia or elsewhere, been convicted or found guilty of a disqualifying offence; or

(g)if—

(i)a body corporate has, within the preceding 5 years in Australia or elsewhere, been convicted or found guilty of a disqualifying offence; and

(ii)the person was a director of the body corporate at the time the disqualifying offence was committed; or

s. 6

(h)if the person carries on or has carried on a relevant business, or holds or has held a relevant licenceor registration and—

(i)the relevant licence or registration is suspended; or

(ii)the relevant licence or registration has been cancelled at any time in the preceding 5 years; or

(iii)the person is disqualified from carrying on the relevant business or has been so disqualified at any time in the preceding 5 years; or

(i)if an associate of the person or, if the person is a body corporate, an associate of a director of the body corporate carries on or has carried on a relevant business, or holds or has held a relevant licenceor registration and—

(i)the relevant licence or registration is suspended; or

(ii)the relevant licence or registration has been cancelled at any time in the preceding 5 years; or

(iii)the associate is disqualified from carrying on the relevant business or has been so disqualified at any time in the preceding 5 years.".

7Applications for registration

s. 7

(1)In section 13(1) of the Consumer Credit (Victoria) Act 1995 for "Registrar" (wherever occurring) substitute "Authority".

(2)After section 13(2)(f) of the Consumer Credit (Victoria) Act 1995 insert—

"(fa)the name and contact information of the approved EDR schemeof which the applicant is a member;

(fb)a description of the types of credit products the applicant proposes to offer or provide;

(fc)whether the applicant employs,or proposes to employ,less than 20 employees or 20 or more employees;

(fd)whether the applicant is, or proposes to be, a linked credit provider;

(fe)each other State or Territory where the applicant carries on the business of providing credit;".

(3)After section 13(2) of the Consumer Credit (Victoria) Act 1995 insert—

"(2A)If the applicant is a natural person, the applicant must certify on the application—

(a)that the applicantis not ineligible to be registered on any ground set out in section 12B(a), 12B(c), 12B(e), 12B(g) or12B(h); and

(b)that,after making relevant inquiries,to the applicant's knowledge,the applicant is not ineligible to be registered on any ground set out in section 12B(f) or12B(i); and

s. 7

(c)that the applicant is of or over the age of 18years.

(2B)If the applicant is a body corporate,the application must be accompanied by a statement by one of the directors certifying—

(a)that the body corporate is not ineligible to be registered on any ground set out in section 12B(b), 12B(c), 12B(d), 12B(e) or12B(h); and

(b)that,aftermaking relevant inquiries of each of the directors, to the knowledge of the director making the statement,the body corporate is not ineligible to be registered on any ground set out in section 12B(f) or12B(i).

(2C)If the applicant is a body corporate, the application must be accompanied by a statement by the director making the application on behalf of the body corporate thatcertifies—

(a)that he or she has authority to make the application on behalf of the body corporate; and

(b)that the particulars contained in the application are true and correct.

(2D)An application under this section must be accompanied by evidence as to the identity of—

(a)the applicant; or

(b)if the applicant is a body corporate, the director making the application on behalf of the body corporate—

by means of a birth certificate, passport (ifthe passport is current or has been expiredfor not more than 2 years), driver licence or any other document in one of the prescribed categories.".

8Repeal of section 13(4)

s. 8

Section 13(4) of the Consumer Credit (Victoria) Act 1995 is repealed.

9New sections 14A, 14B, 14C and 14D inserted

After section 14 of the Consumer Credit (Victoria) Act 1995 insert—

"14AChange to information provided in an application for registration

(1)An applicant for registration must—

(a)give the Authority notice of any material change during the relevant period to the information provided to the Authority by the applicant in support of the application; and

(b)provide the notice referred to in paragraph (a) within 7 days after becoming aware of the change.

Penalty:60 penalty units.

(2)In this section—

material change includes a change resulting in an applicant becoming ineligible to apply for registration;

relevant period means the period between the making of an application for registration and the determination of the application by the Authority.

14BConsideration of application

s. 9

(1)In considering an application for registration, the Authority may—

(a)conduct any inquiries into matters relevant to registration thatthe Authority thinks fit;

(b)require an applicant to provide any further information relating to matters relevant to registration that the Authority thinks fit in the manner required by the Authority;

(c)seek advice and information on the application from any other person or body that the Authority thinks fit.

(2)The Authority may engage or appoint any person to assist it in considering an application.

(3)The Authority may refuse to register an applicant if the applicant does not provide the further information required under subsection (1)(b) within a reasonable time of the requirement being made.

(4)The Authority may request the applicant to provide any consent to disclosure of information that the Authority requires to perform, or have performed, a check on the applicant or on any information included in the applicant's application.

(5)The Authority may refuse to consider an application for registration if the applicant fails to comply with a request under subsection (4) within 14 days after the request is made.

(6)The Authority is not required to conduct an oral hearing to determine whether to register an applicant or refuse to register an applicant.

(7)In this section, in the case of an applicant that is a body corporate, a reference to an applicant includes a reference to a director of the body corporate.

14CReferral of applications to Director

s. 9

(1)Before making a decision on an application for registration, the Authority may refer the application, or any part of the application, to the Director.

(2)If the Authority refers an application, or any part of an application, to the Director under this section, the Director—

(a)must make any inquiries in relation to the application or part of the application that the Director considers to be appropriate to enable the proper consideration of the application; and

(b)must give the Authority a report on the results of those inquiries.

(3)The Director may include in a report any recommendations relating to the application that the Director considers appropriate.

14DReferral of applications to Chief Commissioner

(1)Before making a decision on an application for registration, the Authority may give any details of the application that the Authority considers relevant to the Chief Commissioner.

(2)The Chief Commissioner, on receiving details of the application, must make any inquiries in relation to the application that the Chief Commissioner considers appropriate.

(3)The Chief Commissioner, after receiving the results of the inquiries, must report to the Authority.

(4)A report may include recommendations.".

10Registration

s. 10

(1)For section 15(1) of the Consumer Credit (Victoria) Act 1995 substitute—

"(1)The Authority must register an applicant as a credit provider if it is satisfied—

(a)on the basis of the information provided by the applicant to the Authority or otherwise obtained by the Authority, that the applicant is not ineligible to be registered on any ground set out insection 12B; and

(b)that the applicant complies with the requirements set out in section 13(1).".

(2)In section 15(3) of the Consumer Credit (Victoria) Act 1995 for "registering" substitute "the registration of".

(3)After section 15(3) of the Consumer Credit (Victoria) Act 1995 insert—

"(4)If the Authority decides not to register an applicant, the Authority must notify the applicant in writing of the decision within 14days after that decision is made.".

11New section 19 substituted

s. 11

For section 19 of the Consumer Credit (Victoria) Act 1995 substitute—

"19Register of Credit Providers

(1)The Authority must keep a register to be known as the Register of Credit Providers.

(2)The purposes of the Register are—

(a)to enable members of the public to access information about credit providers;

(b)to record details of the approved EDR scheme of which each credit provider is a member;

(c)to enable the Director and the Authority—

(i)to contact credit providers to inform them of changes to the requirements of the Credit Acts;

(ii)to monitor compliance by credit providers with the Credit Acts;

(iii)to conduct education campaigns for credit providers and consumers in relation to the operation of the Credit Acts.

(3)The Register must be kept in a form, and made available in whole or in part in a form, approved by the Authority.

(4)The Register must contain for each credit provider—

(a)the name and contact information, including any Internet or email addresses maintained for the operation of the business;

(b)if the credit provider is a body corporate, the name of each director of the body corporate;