(8) If the credit contract is a continuing credit contract, the following assumptions also apply to the calculation of the annual cost rate of the contract:
(a) that the debtor has drawn down the maximum amount of credit that the credit provider has agreed to provide under the contract;
(b) that the debtor will pay the minimum repayments specified in the contract;
(c) if credit is provided in respect of payment by the credit provider to a third person in relation to goods or services or cash supplied by that third person to the debtor from time to time—that the debtor will not be supplied with any further goods or services or cash;
(d) if credit is provided in respect of cash supplied by the credit provider to the debtor from time to time—that the debtor will not be supplied with any further cash.
Division 5—Credit provider’s obligation to account
33 Statements of account
(1) A credit provider that provides credit must give to the debtor, or arrange for the debtor to be given, periodic statements of account in accordance with this Division.
Criminal penalty: 100 penalty units.
(2) The maximum period for a statement of account is:
(a) in the case of a credit card contract—40 days; or
(aa) in the case of a continuing credit contract for a reverse mortgage—12 months; or
(b) in the case of any other continuing credit contract—40 days or such longer period, not exceeding 3 months, as is agreed by the credit provider and the debtor; or
(ba) in the case of a reverse mortgage not involving a continuing credit contract—12 months; or
(c) in any other case—6 months.
(3) A statement of account need not be given if:
(a) the credit is provided under a credit contract for which the annual percentage rate is fixed for the whole term of the contract and under which there is no provision for varying the rate; or
(b) no amount has been debited or credited to the account during the statement period (other than debits for government charges, or duties, on receipts or withdrawals) and the amount outstanding is zero or below a level fixed by the regulations; or
(c) the credit provider wrote off the debt of the debtor under the credit contract during the statement period and no further amount has been debited or credited to the account during the statement period; or
(d) the debtor was in default under the credit contract (not being a continuing credit contract) during the statement period and the credit provider has commenced enforcement proceedings; or
(e) the debtor was in default under a continuing credit contract during the preceding 120 days, or during the statement period and the 2 immediately preceding statement periods, whichever is the shorter time, and the credit provider has, before the commencement of the statement period, exercised a right not to provide further credit under the contract and has not provided further credit during the period; or
(f) the debtor has died or is insolvent and the debtor’s personal representative or trustee in bankruptcy has not requested a statement of account; or
(g) in the case of a credit contract that is a low cost credit contract—the credit provider satisfies the requirements prescribed by the regulations for the purposes of this paragraph.
(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.
(5) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
34 Information to be contained in statements of account
(1) A statement of account must contain the following matters.
Statement period
(2) A statement of account must contain the dates on which the statement period begins and ends.
Balances
(3) A statement of account must contain the opening and closing balances (indicating the amount owed by the debtor at the beginning and at the end of the statement period).
Credit provided
(4) A statement of account must contain particulars of each amount of credit provided by the credit provider to the debtor during the statement period.
Identity of supplier
(5) In the case of a credit card contract, a statement of account must contain the identity of the supplier if the credit was provided for any cash, goods or services supplied by another person.
Interest charges
(6) In the case of a credit contract other than a small amount credit contract, a statement of account must contain:
(a) the amount of the interest charge debited to the debtor’s account during the statement period and when the interest was debited; and
(b) the annual percentage rate or rates and, if required by Part 4, details of any change since the last statement period.
Note: A penalty may be imposed for contravention of a key requirement in this subsection: see Part 6.
(6A) Subsection (6) applies in relation to a low cost credit contract only if interest charges are payable under the contract.
Fees and charges
(7) A statement of account must contain particulars of any fees and charges debited to the debtor’s account during the statement period.
Payments to or from account
(8) A statement of account must contain:
(a) particulars of each amount paid by the debtor to the credit provider, or credited to the debtor, during the statement period; and
(b) particulars of any amount transferred to or from the account to which the statement relates or to or from any other account maintained under or for the purposes of the credit contract.
Amounts payable by debtor
(9) If a minimum amount is payable by the debtor under a continuing credit contract, a statement of account must contain a statement of the amount and the date by which it is due.
Insurance payments
(10) If payment to an insurer is made during the statement period under a credit‑related insurance contract that is agreed to be financed under the credit contract, a statement of account must contain:
(a) the name of the insurer, the amount paid to the insurer and the kind of insurance; and
(b) if the credit provider is aware of any commission to be paid by the insurer in relation to the insurance contract—the amount of the commission expressed either as a monetary amount or as a proportion of the premium, if ascertainable when the statement is given;
(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 Insurance Contracts Act 1984:
(c) 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 and the kind of insurance; and
(d) 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 proportion of the premium) to be paid by the insurers.
Alterations
(11) A statement of account must contain any correction of information in a previous statement of account.
Other
(12) A statement of account must contain any other information required by the regulations.
Note: Sections 180 to 182 set out the tolerances and assumptions applicable to matters required to be included in statements of accounts.
35 Opening balance must not exceed closing balance of previous statement
(1) The opening balance shown in each successive statement of account must not exceed the closing balance shown in the last statement of account.
Note: A penalty may be imposed for contravention of a key requirement in this section: see Part 6.
(2) However, if no statement of account was given for the previous period, the next statement of account required to be given by this Code may have an opening balance that exceeds the closing balance for the previous statement and must provide the particulars referred to in subsections 34(4) to (12) in relation to any immediately preceding periods for which statements were not given.
36 Statement of amount owing and other matters
(1) A credit provider must, at the request of a debtor or guarantor and within the time specified by this section, provide a statement of all or any of the following:
(a) the current balance of the debtor’s account;
(b) any amounts credited or debited during a period specified in the request;
(c) any amounts currently overdue and the dates they became due;
(d) any amount currently payable and the date it becomes due.
Criminal penalty: 100 penalty units.
(2) The statement must be given:
(a) within 14 days, if all information requested relates to a period 1 year or less before the request is given; or
(b) within 30 days, if any information requested relates to a period more than 1 year before the request is given.
(3) A statement under this section may be given orally but if the request for the statement is made in writing the statement must be given in writing.
(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 194, to each joint debtor or guarantor.
(5) A credit provider is not required to provide a further written statement under this section if it has, within the 3 months before the request is given, given such a statement to the person requesting it.
(6) Except where otherwise ordered by the court on the application of the debtor or guarantor, a credit provider is not required to provide information in a statement under this section about amounts credited or debited, or which were overdue or payable, more than 7 years before the request is given unless those amounts are currently overdue and payable.
(7) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
37 Court may order statement to be provided
If a statement is not provided within the time required by this Division, the court may, on the application of the debtor or guarantor, order the credit provider to provide the statement or itself determine the amounts in relation to which the statement was sought.
38 Disputed accounts
(1) If a debtor, by written notice to a credit provider, disputes a particular liability entered against the debtor under a credit contract, the credit provider must give the debtor a written notice explaining in reasonable detail how the liability arises.
(2) A written notice need not be given if the credit provider agrees with the debtor as to the disputed amount and gives the debtor a written notice advising of the agreed liability.
(3) If in the case of a continuing credit contract the disputed entry appears in a statement of account in which a date for payment of the amount of the account, or part of that amount, is shown, the notice of dispute must be given to the credit provider on or before that date.
(4) In the case of any other credit contract for which a statement of account is given, the notice of dispute must be given to the credit provider within 30 days after the day the debtor receives the statement of account in which the amount, or part of that amount, is first shown.
(5) 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 not later than 3 months after the day the contract ends.
(6) The credit provider must not begin enforcement proceedings on the basis of a default arising from the disputed liability until the period of 30 days, starting on the day the credit provider gives the written explanation or advice as to agreement, has expired.
Criminal penalty: 50 penalty units.
(7) A debtor or credit provider may apply to the court to have the court determine a disputed liability and, if satisfied that a liability is genuinely disputed, the court may determine the matters in dispute and make such consequential orders as it thinks just.
(8) If an application is made to the court under this section within 30 days after the explanation is given, the credit provider must not, without leave of the court, begin enforcement proceedings on the basis of a default arising from the disputed liability.
Criminal penalty: 50 penalty units.
(9) Subsections (6) and (8) are offences of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(10) This section does not affect a dispute not dealt with, or not arising, under this section.
39 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 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 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:
(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 or credits to a debtor’s account consistent with the credit contract; or
(c) the assignment or adjustment results in a contravention of section 26; or
(d) the assignment of the date on which an interest charge is taken to be debited results in a debit being taken to be done before a time permitted under this Code.
(4) An adjustment by a credit provider under subsection (2) does not affect any liability of a credit provider under Part 6.
Division 5A—Additional rules relating to small amount credit contracts
39A Limit on the application of amount of credit provided under a small amount credit contract
(1) No part of the amount of credit provided under a small amount credit contract may be applied to pay an amount (the prohibited credit amount) to:
(a) the credit provider; or
(b) a person prescribed by the regulations.
(2) Subsection (1) does not apply to:
(a) an amount of a permitted establishment fee, or a permitted monthly fee, payable in relation to the small amount credit contract; or
(b) an amount of a government fee, charge or duty payable in relation to the small amount credit contract; or
(ba) if some or all of the amount of credit (the refinanced amount) is to refinance some or all of the amount of credit provided by the credit provider to the debtor under another small amount credit contract—the refinanced amount; or
(c) an amount prescribed by the regulations.
(3) If subsection (1) is contravened in relation to a small amount credit contract:
(a) the debtor is not liable (and is taken never to have been liable) to repay the prohibited credit amount to the credit provider; and
(b) the debtor may recover as a debt due to the debtor any amount paid to the credit provider to the extent that it relates to the prohibited credit amount.
39B Limit on amount that may be recovered if there is default under a small amount credit contract
(1) If there is a default in payment under a small amount credit contract, the credit provider in relation to the contract must not (whether by repayments under the contract or otherwise) recover more than twice the adjusted credit amount in relation to the contract.
Civil penalty: 5,000 penalty units.
(2) Any provision of the small amount credit contract that confers a greater right is void to the extent that it does so. If an amount is in fact recovered in excess of this limitation, it may be recovered back.
(3) This section does not apply to enforcement expenses.
39C Credit provider must do prescribed things if a default in payment by direct debit occurs
If:
(a) the amount of repayments under a small amount credit contract are to be paid by way of direct debit; and
(b) the direct debit has been authorised by the debtor; and
(c) a default in the payment of an amount of a repayment occurs;
the credit provider must do the things prescribed by the regulations.
Criminal penalty: 50 penalty units.
Division 6—Certain transactions not to be treated as new contracts
40 Changes etc. under contracts
If:
(a) there is:
(i) a change to an existing credit contract that results in further credit being provided; or
(ii) a deferral or waiver of an amount under an existing credit contract; or
(iii) a postponement relating to an existing credit contract; and
(b) the change, deferral, waiver or postponement is made in accordance with this Code or the existing credit contract;
then the change, deferral, waiver or postponement is not to be treated as creating a new credit contract for the purposes of this Code.
Part 3—Related mortgages and guarantees
Division 1—Mortgages
41 Application of Division
This Division applies to a mortgage (under which the mortgagor is a natural person or a strata corporation) which secures obligations under a credit contract or related guarantee, whether or not it also secures other obligations (see section 7).
42 Form of mortgage
(1) A mortgage must be in the form of a written mortgage document that is signed by the mortgagor.
(2) It is sufficient compliance with subsection (1) if:
(a) the mortgage is contained in a credit contract signed by the mortgagor; or
(b) one of the documents comprising the mortgage document is signed by the mortgagor (and the other documents are referred to in the signed document).