(3) If there is a dispute between the credit provider and the debtor, mortgagor or guarantor about the amount of enforcement expenses that may be recovered by the credit provider, the court may, on application by any of the parties to the dispute, determine the amount of that liability.
Division 6—Mortgagor’s remedies
108 Mortgagor may apply to regain possession of mortgaged goods
(1) If a credit provider takes possession of mortgaged goods in contravention of Division 2 or Division 4, the court may, on the application of the mortgagor, order the credit provider, at the credit provider’s expense, to return possession of the goods to the mortgagor.
(2) An order may be made under subsection (1) even though the relevant default has not been remedied.
(3) A person who contravenes an order under subsection (1) commits an offence.
Criminal penalty: 30 penalty units.
(4) Subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
109 Order for possession for mortgagor
(1) The court may, when making an order under subsection 108(1), order a person who has possession of the goods to deliver them to the mortgagor at a specified time or place or within a specified period.
(2) If the person is not the credit provider, the court may also order the credit provider to pay the person’s costs of delivering the goods to the mortgagor.
(3) The court may, on the application of a mortgagor or other person required to deliver goods to a mortgagor, by order vary the place at which or time or period within which goods must be delivered to the mortgagor.
(4) A person who contravenes an order under this section commits an offence.
Criminal penalty: 30 penalty units.
(5) Subsection (4) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
110 Ancillary or consequential orders
(1) This section applies if the court makes an order under this Division.
(2) The court may make ancillary or consequential orders it considers appropriate, including, for example, orders to restore the parties to the position they were in before the taking of possession in contravention of Division 2 or Division 4.
(3) Without limiting subsection (2), the court may order that the mortgagor be paid compensation for any damage to the goods because of the taking of possession.
Part 6—Penalties for defaults of credit providers and lessors
Division 1—Penalties for breach of key disclosure and other requirements
111 Key requirements
(1) For the purposes of this Division, a key requirement in connection with a credit contract (other than a continuing credit contract) is any one of the requirements of this Code contained in the following provisions:
(a) subsection 17(3);
(b) subsection 17(4);
(c) subsection 17(5);
(d) subsection 17(6);
(e) paragraphs 17(8)(a) and (b)—but only in respect of retained credit fees and charges;
(f) subsection 17(9);
(g) subsection 17(11);
(h) paragraphs 17(15)(a) and (b);
(ha) subsection 17(15A);
(i) subsection 23(1)—but only at the time the credit contract is entered into;
(ia) section 31C;
(j) subsection 32A(1);
(k) subsection 32AA(2).
(2) For the purposes of this Division, a key requirement in connection with a continuing credit contract is any one of the requirements of this Code contained in the following provisions:
(a) paragraph 17(3)(b);
(b) subsection 17(4);
(c) subsection 17(5);
(d) paragraphs 17(8)(a) and (b)—but only in respect of retained credit fees and charges;
(e) subsection 17(9);
(ea) subsection 17(15A);
(f) subsection 23(1);
(fa) subsection 32A(1);
(fb) subsection 32AA(2);
(g) subsection 34(6);
(h) section 35.
(2A) For the purposes of this Division, a key requirement in connection with a consumer lease is any one of the requirements of this Code contained in the following provisions:
(a) subsection 174(1A);
(b) subsection 175AA(1);
(c) subsection 175AA(2);
(d) section 179VA.
(3) A key requirement relating to a disclosure or a statement of account extends to the requirements set out in Part 2 as to the manner in which the disclosure or statement is to be made, but does not extend to any requirements set out in the regulations.
112 Application for order relating to key requirements
(1) An application for an order under this Division may be made by:
(a) a party to a credit contract or consumer lease; or
(b) a guarantor in relation to a credit contract; or
(c) ASIC.
(2) A debtor, lessee or guarantor may not make an application for an order under this Division in respect of a contravention in connection with a contract or consumer lease if the contravention is or has been subject to an application for an order made by the credit provider, lessor or ASIC anywhere in Australia under this Code.
(3) Subsection (2) does not prevent an application from being made for an order for the payment of compensation under section 118.
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 more than one of those requirements as a single contravention of the one key requirement for the purposes of determining the amount of a penalty.
Suppression of publication of application
(6) The court may, if it thinks it appropriate in the circumstances, order that particulars of or any matters relating to an application for an order under this Division not be published.
114 Penalty if application made by debtor or guarantor
(1) On application being made by a debtor or a guarantor for an order in relation to a credit contract other than a small amount credit contract, the maximum penalty that may be imposed by the court for a contravention of a key requirement is an amount not exceeding the amount of:
(a) except as provided by paragraphs (b) and (c)—all interest charges payable under the contract from the date it was made; or
(b) in the case of a contravention of a key requirement relating to a statement of account of a continuing credit contract—all interest charges payable under the contract for the period to which the statement of account relates; or
(c) in the case of a contravention of a key requirement relating to prohibited monetary obligations—all interest charges accruing under the contract from the date the contravention occurred.
(1A) On application being made by a debtor or a guarantor for an order in relation to a small amount credit contract, the maximum penalty that may be imposed by the court for a contravention of a key requirement is an amount not exceeding the sum of the following amounts:
(a) the amount of the permitted establishment fee payable in relation to the contract;
(b) the total amount of the permitted monthly fees payable in relation to the contract based on the term of the contract when it was made.
(2) The court may, however, impose a greater penalty if the debtor or guarantor satisfies the court that the debtor has suffered a loss. The amount of the penalty is to be not less than the amount of the loss.
(3) For the purposes of paragraph (1)(a), the amount of future interest charges payable under a credit contract is to be calculated on the assumptions in sections 180 and 182.
114A Penalty if application made by lessee
(1) On application being made by a lessee for an order in relation to a consumer lease, the maximum penalty that may be imposed by the court for a contravention of a key requirement is an amount not exceeding the difference between:
(a) the total amount payable by the lessee under the consumer lease; and
(b) the base price of the goods hired under the lease.
(2) The court may, however, impose a greater penalty if the lessee satisfies the court that the lessee has suffered a loss. The amount of the penalty is to be not less than the amount of the loss.
(3) For the purposes of paragraph (1)(a), the amount payable under a consumer lease to the extent it relates to amounts payable in the future is to be calculated on the assumptions in sections 180 and 182.
115 Payment of penalty to debtor, lessee or guarantor
(1) An amount of penalty ordered by the court to be paid may:
(a) if the order was made on an application by a debtor or a guarantor in relation to a credit contract—be set off by the debtor or guarantor against any amount that is due or becomes due to the credit provider under the contract; or
(b) if the order was made on an application by a lessee in relation to a consumer lease—be set off by the lessee against any amount that is due or becomes due to the lessor under the lease.
If there is no such amount, the amount of the penalty is a debt due by the credit provider or lessor to the debtor, lessee or guarantor
(2) The Consolidated Revenue Fund is appropriated for the purposes of:
(a) a set‑off; or
(b) a debt due;
in relation to a penalty ordered under subsection (1). The Public Governance, Performance and Accountability Act 2013 does not apply in relation to those amounts.
(3) An order made on application by a debtor, a lessee or a guarantor may include such directions as the court considers appropriate relating to the payment of the amount owed by the debtor or lessee, or the credit provider or lessor, as a result of the order.
116 Penalty if application made by credit provider, lessor or ASIC
(1) On application being made by a credit provider, a lessor or ASIC for an order, the maximum penalty that may be imposed by the court for a contravention of a key requirement relating to a contract affected by the application is an amount calculated so that the total penalty for all contraventions of the requirement in Australia (as disclosed by the credit provider or lessor) does not exceed 5,000 penalty units.
(2) However, section 167B of the National Credit Act applies in the same way in relation to the contravention of a key requirement as it would apply in relation to a civil penalty provision under that Act.
117 Payment of penalty
An amount of penalty ordered by the court to be paid on an application for an order made by a credit provider, a lessor or ASIC must be paid by the credit provider or lessor to ASIC on behalf of the Commonwealth.
118 Compensation for debtor, lessee or guarantor
(1) The court may, on application by a debtor, a lessee or a guarantor, order that the credit provider or lessor pay to the debtor, lessee or guarantor an amount by way of compensation for loss arising from the contravention of a key requirement.
(2) The court may only order an amount to be paid by way of compensation if the debtor, lessee or guarantor satisfies the court that the debtor, lessee or guarantor has suffered a loss arising from the contravention. The amount of compensation is not to exceed the amount of the loss.
(3) The court may not make an order under this section if the debtor, lessee or guarantor has previously obtained or been refused a penalty referred to in section 115 relating to the same contravention.
(4) An amount payable under this section does not affect the amount of a penalty for the purposes of section 116.
119 General provisions relating to applications by credit providers, lessors or ASIC
(1) An application for an order by a credit provider, a lessor or ASIC:
(a) may apply to any one or more credit contracts or consumer leases; and
(b) may apply to all or any class of credit contracts entered into by the credit provider or lessor during a specified period (for example, all credit contracts entered into during a specified period which are affected by a specified contravention).
(2) The court may require notice of any such application to be published by notice, in a form approved by the court, and in a manner determined by the court.
(3) Notice of an application by a credit provider or lessor must be given by the credit provider or lessor to ASIC.
120 ASIC may represent interests of debtors and lessees
ASIC may apply to the court to become a party to an application under this Division and, if joined as a party, has standing to represent the public interest and the interests of debtors or lessees.
121 Directions pending court’s decision
(1) The court may, before disposing of an application by a debtor, lessee or guarantor for an order under this Division, make such directions as it considers appropriate to protect the interests of the debtor, lessee or guarantor concerned.
(2) Subject to any such directions of the court, the application does not prevent:
(a) any proceedings for the enforcement of the debtor’s obligations (or the obligations of a guarantor), or the lessee’s obligations, from being taken; or
(b) any rights over property the subject of a mortgage from being exercised.
(3) For the purposes of this section, a reference to the disposal of an application includes a reference to its withdrawal by the applicant.
(4) A credit provider or lessor affected by a direction of the court may apply to the court for variation of the direction. The court may, on such an application being made, vary or revoke the direction or refuse to vary or revoke the direction.
122 Offences
Nothing in this Division affects the liability of a person for an offence against this Code or the regulations.
123 Time limit for application for orders under this Division
(1) Proceedings under this Division for a declaration of contravention and the imposition of a penalty for a contravention may not be brought after 6 years from the day the contravention happened.
(2) Subsection (1) applies despite any Act relating to the limitation of time for commencing actions.
(3) In this section:
contravention means contravention of a key requirement.
Division 2—Other penalties
124 Civil effect of contraventions
(1) If a credit provider or lessor contravenes a requirement of or made under this Code, the court may order the credit provider or lessor to make restitution or pay compensation to any person affected by the contravention and, in that event, may make any consequential order it considers appropriate in the circumstances.
(2) An application for the exercise of the court’s powers under this section may be made by:
(a) a person affected by the contravention; or
(b) ASIC on behalf of a person affected by the contravention, if the person has consented in writing to ASIC making the application; or
(c) ASIC (on its own behalf).
Part 7—Related sale contracts
Division 1—Interpretation and application
125 Meaning of sale contract
For the purposes of this Code, a sale contract is a contract for any one or more of the following:
(a) a contract for the sale of goods;
(b) a contract for the supply of services.
126 Sale contracts to which this Part applies
This Part applies to or in respect of a sale contract or proposed sale contract only if the sale of the goods or supply of services concerned is financed, or is proposed to be financed, wholly or partly by the provision of credit to which this Code applies.
127 Linked credit providers and tied credit contracts
(1) For the purposes of this Code, a linked credit provider of a supplier means a credit provider: