179B Court may determine amount payable on termination if lessor does not
179C One‑off notice to be given the first time a direct debit default occurs
Subdivision C—Enforcement of consumer leases
179D Requirements to be met before lessor can enforce consumer lease against defaulting lessee
179E Defaults may be remedied
179F Effect of hardship notices on enforcement
179G Requirements to be met before lessor can enforce an acceleration clause
179GA Limit on amount that may be recovered if there is default under a consumer lease
Subdivision D—Postponement of enforcement proceedings
179H Postponement of exercise of rights
179J Effect of negotiated postponement
179K Postponement by court
179L Lessor may apply for variation of postponement order
Subdivision E—Enforcement procedures for goods hired under a consumer lease
179M Information as to location of goods hired under a consumer lease
179N Entry to residential property to take possession of goods
179P Court may order entry
179Q Order for possession
Subdivision F—Enforcement expenses
179R Recovery of enforcement expenses
Division 9—Linked lessors and tied consumer leases
Subdivision A—Interpretation and application
179S Linked lessors and tied consumer leases
Subdivision B—Liability of lessors for suppliers’ misrepresentations
179T Lessor liable for supplier’s misrepresentations about hired goods
Division 10—Conduct relating to consumer leases
179U False or misleading representations
179V Harassment
179VA Canvassing of consumer leases for household goods
179VB Using postal, telegraphic, telephonic or other like services to enter into a consumer lease for an indefinite period
179VC Entering into a consumer lease for an indefinite period in the course of constitutional trade and commerce
Division 11—Other Code provisions applicable to consumer leases
179W Application of certain Code provisions to consumer leases
Part 12—Miscellaneous
Division 1—Tolerances and assumptions
180 Tolerances and assumptions relating to information
181 Tolerances relating to contracts and other documents
182 Regulations
Division 2—Documentary provisions
183 Form of notices
184 Legibility and language
185 Copies of contracts and other documents
185A Records of nominations of persons to occupy reverse mortgaged properties
186 Signing of documents
187 Application of the Electronic Transactions Act 1999
Division 3—General provisions
188 Assignment by credit provider
189 Assignment by debtor, mortgagor or guarantor
190 Appropriation of payments
191 Contracting out
192 Indemnities
193 Effect of noncompliance
194 Giving notice or other document
195 Manner of giving notice or other document
196 Date of notice or other document
197 Extensions of time
198 Orders of court
199 Conduct of agents and related matters
Division 4—Provisions relating to offences
200 Offences by officers, agents or employees
201 Offences by corporations
202 Limitations
203 Application of section 4K of the Crimes Act 1914
Division 5—Exemptions from this Code
203A Exemptions by ASIC
203B Exemptions by the regulations
Part 13—Principal definitions
204 Principal definitions
Part 14—Miscellaneous provisions relating to interpretation
Division 1—Preliminary
205 Displacement of Part by contrary intention
Division 2—General
207 References to particular Acts and to enactments
208 Compliance with forms
Division 3—Terms and references
209 Provisions relating to defined terms and gender and number
210 Meaning of may and must etc.
211 Effect of express references to bodies corporate and individuals
212 Reference to certain provisions of Code
213 Reference to provisions of this Code or an Act is inclusive
Division 4—Functions and powers
214 Power to make instrument or decision includes power to amend or repeal
215 Matters for which statutory instruments may make provision
216 Presumption of validity and power to make
217 Exercise of powers between enactment and commencement
Division 5—Distance, time and age
218 Matters relating to distance, time and age
Endnotes
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Chapter 7—Miscellaneous
Part 7‑1—Miscellaneous
Division 1—Introduction
323 Guide to this Part
This Part deals with miscellaneous matters.
Division 1A has rules that prohibit schemes that are designed to avoid the application of this Act in relation to small amount credit contracts, low cost credit contracts and consumer leases or to avoid the application of product intervention orders.
Division 2 deals with when a person will be liable for the conduct of others (usually the person’s employee or agent).
Division 3 provides for ART review of ASIC’s decisions.
Division 4 provides for regulations to be made.
Division 5 has other miscellaneous provisions (such as Ministerial delegations).
Division 1A—Avoidance schemes
323A Schemes for avoidance purposes
General prohibition
(1) A person must not, either alone or with others, engage in any of the following conduct:
(a) enter into a scheme;
(b) begin to carry out a scheme;
(c) carry out a scheme;
if, having regard to any matters as required under subsection 323B(1) or (3), it would be reasonable to conclude that the purpose, or one of the purposes, of the person engaging in that conduct was an avoidance purpose.
Civil penalty: 5,000 penalty units.
What is an avoidance purpose?
(2) Each of the following is an avoidance purpose:
(a) to prevent a contract from being a small amount credit contract, a low cost credit contract or a consumer lease;
(b) to cause a contract to cease to be a small amount credit contract, a low cost credit contract or a consumer lease;
(c) to avoid the application of a provision of this Act to a small amount credit contract, a low cost credit contract or a consumer lease;
(d) to avoid the application of a provision of this Act to a contract that has ceased to be a small amount credit contract, a low cost credit contract or a consumer lease;
(e) to avoid the application of a product intervention order made under Part 6‑7A.
Constitutional corporations
(3) A constitutional corporation must not, either alone or with other persons, engage in any of the following conduct:
(a) enter into a scheme;
(b) begin to carry out a scheme;
(c) carry out a scheme;
if, having regard to any matters as required under subsection 323B(1) or (3), it would be reasonable to conclude that the purpose, or one of the purposes, of the constitutional corporation engaging in that conduct was an avoidance purpose.
Civil penalty: 5,000 penalty units.
Constitutional trade and commerce
(4) A person must not in the course of constitutional trade and commerce, either alone or with others, engage in any of the following conduct:
(a) enter into a scheme;
(b) begin to carry out a scheme;
(c) carry out a scheme;
if, having regard to any matters as required under subsection 323B(1) or (3), it would be reasonable to conclude that the purpose, or one of the purposes, of the person engaging in that conduct was an avoidance purpose.
Civil penalty: 5,000 penalty units.
Use of communications service
(5) A person must not use postal, telegraphic, telephonic or other like services (within the meaning of paragraph 51(v) of the Constitution), either alone or with other persons, in order to engage in any of the following conduct:
(a) enter into a scheme;
(b) begin to carry out a scheme;
(c) carry out a scheme;
if, having regard to any matters as required under subsection 323B(1) or (3), it would be reasonable to conclude that the purpose, or one of the purposes, of the person engaging in that conduct was an avoidance purpose.
Civil penalty: 5,000 penalty units.
Prohibitions independent of each other
(6) To avoid doubt, subsections (1), (3), (4) and (5) are independent from and do not limit each other.
Note: However, a person can be ordered to pay a pecuniary penalty under only one of those subsections in relation to the same conduct: see section 175.
Offence
(7) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1), (3), (4) or (5); and
(b) the person engages in conduct; and
(c) the conduct contravenes the requirement.
Criminal penalty: 100 penalty units.
323B Whether it is reasonable to draw conclusion as to purpose
Avoidance purposes relating to contracts
(1) Regard must be had to the following matters in determining, for the purposes of section 323A, whether it would be reasonable to conclude that a purpose of a person (the first person) entering into or carrying out (to any extent) a scheme was an avoidance purpose relating to a contract:
(a) whether the scheme or the contract was, is or would be:
(i) a means of providing a consumer with credit in a manner more complex, or more costly to the consumer, than a small amount credit contract or a low cost credit contract would have been; or
(ii) a means of providing a consumer with financial accommodation equivalent to providing the consumer with credit in a manner more complex, or more costly to the consumer, than a small amount credit contract or a low cost credit contract would have been; or
(iii) a means of enabling a consumer to have the use of goods in a manner more complex, or more costly to the consumer, than a consumer lease would have been;
(b) whether representations were made (by the first person or anyone else, and whether in an advertisement or otherwise) about the scheme or the contract, or about schemes or contracts of that kind, that:
(i) were similar to representations made (by the first person or anyone else, and whether in an advertisement or otherwise) about small amount credit contracts, low cost credit contracts or consumer leases; or
(ii) were made to persons in a group similar to a group of persons to whom representations about small amount credit contracts, low cost credit contracts or consumer leases were made (by the first person or anyone else, and whether in an advertisement or otherwise);
(c) any matters prescribed by the regulations.
(2) Subsection (1) does not limit the matters to which regard may be had in making a determination described in that subsection.
Avoidance purposes relating to product intervention orders
(3) In determining, for the purposes of section 323A, whether it would be reasonable to conclude that a purpose of a person entering into or carrying out (to any extent) a scheme was a purpose referred to in paragraph 323A(2)(e), regard must be had to any matters prescribed by the regulations.
(4) Subsection (3) does not limit the matters to which regard may be had in making a determination described in that subsection.
323C Presumption of avoidance for certain schemes in civil cases
(1) For the purposes of subsection 323A(1), (3), (4) or (5), it is reasonable to conclude that a person entered into or carried out a scheme for an avoidance purpose if:
(a) the scheme is of a kind prescribed by the regulations; or
(b) the scheme is of a kind determined by ASIC under subsection (3).
(2) A conclusion that this section provides for has effect except so far as the contrary is proved by the person, having regard to any matters as required under subsection 323B(1) or (3).
(3) ASIC may, by legislative instrument, determine a scheme, or a class of schemes, for the purposes of this section.
(4) This section does not have effect for the purposes of subsection 323A(7).
323D Exemption by ASIC
(1) ASIC may, by legislative instrument, exempt a scheme, or class of schemes, from all or specified provisions of section 323A.
(2) An exemption may apply subject to any specific conditions imposed by ASIC.
Division 2—Liability of persons for conduct of their agents etc.
324 Liability for bodies corporate for conduct of their agents, employees etc.
Liability of bodies corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by a director, employee or agent (an official) of the body within the scope of the person’s actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act (other than the National Credit Code), to have been engaged in also by the body.
(2) Any conduct engaged in by a person (for example, the giving of money) in relation to:
(a) an official of the body acting within the scope of his or her actual or apparent authority; or
(b) any other person acting at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act (other than the National Credit Code), to have been engaged in also in relation to the body.
State of mind of a body corporate
(3) If, for the purposes of this Act (other than the National Credit Code), it is necessary to establish the state of mind of the body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Disapplication of Part 2.5 of the Criminal Code
(4) Part 2.5 of the Criminal Code does not apply to an offence against this Act.
Note: Part 2.5 of the Criminal Code deals with corporate criminal responsibility, but this section instead deals with that for the purposes of this Act (other than the National Credit Code), and section 199 of the National Credit Code deals with that for the purpose of that Code.
325 Liability of persons (other than bodies corporate) for the conduct of their agents, employees etc.
Liability of principals
(1) Any conduct engaged in on behalf of a person (the principal) who is not a body corporate:
(a) by any of the following persons (an official) within the scope of the person’s actual or apparent authority:
(i) an employee or agent of the principal;
(ii) if the principal is a partnership—a partner;
(iii) if the principal is the trustees of a trust—a trustee; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the principal, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act (other than the National Credit Code), to have been engaged in also by the principal.
(2) Any conduct engaged in by a person (for example, the giving of money) in relation to:
(a) an official of the principal acting within the scope of his or her actual or apparent authority; or
(b) any other person acting at the direction or with the consent or agreement (whether express or implied) of an official of the principal, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act (other than the National Credit Code), to have been engaged in also in relation to the principal.
State of mind of the principal
(3) If, for the purposes of this Act (other than the National Credit Code), it is necessary to establish the state of mind of the principal in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
326 Regulations for the purposes of this Division
The regulations may modify this Division for the purposes prescribed in the regulations.