(b) the amount worked out by multiplying the base price of the goods hired under the consumer lease by:
(i) in the case of a consumer lease for a fixed term—0.04 multiplied by the number of whole months of the consumer lease, up to a maximum of 48 months; or
(ii) in the case of a consumer lease for an indefinite period—1.92;
(c) the permitted delivery fee (if any) for the consumer lease;
(d) the permitted installation fees (if any) for the consumer lease;
(e) the permitted add‑on fees (if any) for the consumer lease.
What is the base price of goods?
(6) The base price of the goods hired under a consumer lease is the amount worked out in accordance with the regulations.
What is a permitted delivery fee?
(7) A fee or charge is a permitted delivery fee for a consumer lease if it:
(a) is for the delivery to the lessee, at the lessee’s request, of the goods hired under the consumer lease; and
(b) is limited to the reasonable cost of delivery of the goods to the lessee.
What are permitted installation fees?
(8) ASIC may, by legislative instrument, declare that specified fees which relate to installation of particular kinds of goods hired under a consumer lease are permitted installation fees for the lease.
What are permitted add‑on fees?
(9) ASIC may, by legislative instrument, declare that specified add‑on fees for a consumer lease are permitted add‑on fees for the lease.
175AB Imposing fees or charges above the permitted cap—offence
A person commits an offence if:
(a) the person is subject to a requirement under subsection 175AA(1) or (2); and
(b) the person engages in conduct; and
(c) the conduct contravenes the requirement.
Criminal penalty: 100 penalty units.
175AC Lessee may recover fees and charges exceeding base price if cap is breached
If a lessor contravenes subsection 175AA(1) or (2) in relation to a consumer lease:
(a) the lessee is not liable (and is taken never to have been liable) to pay any amount under the consumer lease that exceeds the base price of the goods hired under the consumer lease (whether or not the liability is imposed consistently with this Code); and
(b) the lessee may recover as a debt due to the lessee the amount of any payment made by the lessee that, in accordance with paragraph (a), the lessee is not liable to pay.
175B Fees or charges in relation to third parties
When this section applies
(1) This section applies if a fee or charge is payable by a lessee to the lessor for an amount (the third party amount) payable or paid by the lessor to another person, body or agency.
Third party amount ascertainable at time of lessee payment
(2) If, when the fee or charge is paid by the lessee to the lessor, the third party amount is ascertainable, then the amount of the fee or charge must not exceed the third party amount.
Third party amount not ascertainable at time of lessee payment
(3) If:
(a) when the fee or charge is paid by the lessee to the lessor, the third party amount is not ascertainable; and
(b) after the fee or charge is paid, the lessor ascertains the third party amount; and
(c) the third party amount is less than the amount of the fee or charge paid;
then the lessor must refund or credit the difference to the lessee.
Determining third party amount
(4) The third party amount is to be determined by:
(a) taking into account any discount, rebate or other allowance that is received or receivable by the lessor or a related body corporate (within the meaning of the Corporations Act 2001); and
(b) disregarding any rebate on tax payable by the lessor or a related body corporate (within the meaning of that Act).
Division 5—Lessor’s obligation to account
Subdivision A—Ongoing statements of account
175C Statements of account
(1) A lessor must give to the lessee, or arrange for the lessee to be given, periodic statements of account in accordance with this Subdivision.
Criminal penalty: 100 penalty units.
(2) The maximum period for a statement of account is 12 months.
(3) A statement of account need not be given if:
(a) the lessee was in default under the consumer lease during the statement period and the lessor has commenced enforcement proceedings; or
(b) the lessee has died or is insolvent and the lessee’s personal representative or trustee in bankruptcy has not requested a statement of account.
(4) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
175D Information to be contained in statements of account
A statement of account must contain the information prescribed by the regulations.
175E Statement of amount owing and other matters
(1) A lessor must, at the request of a lessee and within the time specified by this section, provide a statement of all or any of the following:
(a) any amounts credited to the lessee’s account during a period specified in the request;
(b) any amounts currently overdue and the date they became due;
(c) any amount currently payable and the date it becomes due;
(d) any other information prescribed by the regulations.
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 lessees, the statement under this section need only be given to a lessee who requests the statement and not, despite section 194, to each joint lessee.
(5) A lessor 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) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
175F Court may order statement of account to be provided
If a statement of account is not provided within the time required by this Subdivision, the court may, on the application of the lessee, order the lessor to provide the statement or itself determine the amounts in relation to which the statement was sought.
175G Disputed accounts
(1) If:
(a) a liability is entered against a lessee under a consumer lease; and
(b) the lessee, by written notice to the lessor, disputes the liability;
then the lessor must give the lessee a written notice explaining in reasonable detail how the liability arises.
(2) A written notice need not be given if the lessor agrees with the lessee as to the disputed amount and gives the lessee a written notice advising of the agreed liability.
(3) In the case of a consumer lease for which a statement of account is given, the notice of dispute must be given to the lessor within 30 days after the day the lessee receives the statement of account in which the amount, or part of that amount, is first shown.
(4) In the case of a consumer lease 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 lessor not later than 3 months after the day the lease ends.
(5) The lessor 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 lessor gives the written explanation or advice as to agreement, has expired.
Criminal penalty: 50 penalty units.
(6) A lessee or lessor 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.
(7) If an application is made to the court under this section within 30 days after the day the written explanation is given, the lessor 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.
(8) Subsections (5) and (7) are offences of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(9) This section does not affect a dispute not dealt with, or not arising, under this section.
Subdivision B—End of lease statements
175H End of lease statement
(1) A lessor must arrange for the lessee to be given, by the time specified in subsection (1A), a statement containing the information prescribed by the regulations.
Criminal penalty: 100 penalty units.
(1A) The time by which the statement required by subsection (1) must be given is:
(a) in the case of a consumer lease for an indefinite period—before the end of the period of 7 business days after:
(i) the lessor receives a request for the statement from the lessee; or
(ii) if the lessor does not receive such a request before the consumer lease ends—the day that the consumer lease ends; or
(b) in the case of a consumer lease for a fixed term—not later than 90 days before the end of the fixed term of the consumer lease.
(2) Subsection (1) does not apply in the circumstances (if any) prescribed by the regulations.
(3) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Division 6—Certain transactions not to be treated as new consumer leases
175J Changes etc. under consumer leases
If:
(a) there is:
(i) a change to an existing consumer lease that results in further goods being provided; or
(ii) a deferral or waiver of an amount under an existing consumer lease; or
(iii) a postponement relating to an existing consumer lease; and
(b) the change, deferral, waiver or postponement is made in accordance with this Code or the existing consumer lease;
then the change, deferral, waiver or postponement is not to be treated as creating a new consumer lease or a credit contract for the purposes of this Code.
Division 7—Changes to obligations under consumer leases
Subdivision A—Changes by agreement of parties
177A Changes by agreement
(1) If the parties under an existing consumer lease agree to change its terms, the lessor must, not later than 30 days after the date of the agreement, give to the lessee a written notice setting out:
(a) particulars of the change in the terms of the consumer lease; and
(b) any information required by the regulations.
Criminal penalty: 100 penalty units.
(2) Subsection (1) does not apply to a change which defers or otherwise reduces the obligations of the lessee for a period not exceeding 90 days.
(3) This section does not apply to a change made under Subdivision B.
(4) The lessor may, under subsection (1), give a lessee particulars only of a matter as changed instead of particulars of the change, but only if the lessor:
(a) makes it clear to the lessee that the matter has changed; or
(b) issues to the lessee a new set of terms and conditions relating to the consumer lease.
(5) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Subdivision B—Changes on grounds of hardship and unjust transactions
177B Changes on grounds of hardship
Hardship notice
(1) If a lessee considers that he or she is or will be unable to meet his or her obligations under a consumer lease, the lessee may give the lessor notice (a hardship notice), orally or in writing, of the lessee’s inability to meet the obligations.
Note: If the lessee has given the lessor a hardship notice, there may be extra requirements (beyond those in section 179D) that the lessor must comply with before beginning enforcement proceedings—see section 179F.
Further information
(2) Within 21 days after the day of receiving the lessee’s hardship notice, the lessor may give the lessee notice, orally or in writing, requiring the lessee to give the lessor specified information within 21 days of the date of the notice stated in the notice. The information specified must be relevant to deciding:
(a) whether the lessee is or will be unable to meet the lessee’s obligations under the lease; or
(b) how to change the lease if the lessee is or will be unable to meet those obligations.
(3) The lessee must comply with the requirement.
Note: The lessor need not agree to change the consumer lease, especially if the lessor:
(a) does not believe there is a reasonable cause (such as family violence, illness or unemployment) for the lessee’s inability to meet his or her obligations; or
(b) reasonably believes the lessee would not be able to meet his or her obligations under the lease even if it were changed.
Notice of decision on changing consumer lease
(4) The lessor must, before the end of the period identified under subsection (5), give the lessee a notice:
(a) that is in the form (if any) prescribed by the regulations and records the fact that the lessor and the lessee have agreed to change the consumer lease; or
(b) that is in the form (if any) prescribed by the regulations and states:
(i) the lessor and the lessee have not agreed to change the consumer lease; and
(ii) the reasons why they have not agreed; and
(iii) the name and contact details of the AFCA scheme; and
(iv) the lessee’s rights under that scheme.
Civil penalty: 5,000 penalty units.
(4A) Subsection (4) does not apply if the lessor and the lessee agree to a change to the consumer lease that defers or otherwise reduces the obligations of the lessee under that lease for a period not exceeding 90 days.
(5) The lessor must give the notice before the end of the period identified using the table.
Period for giving notice
If: The period is:
1 The lessor does not require information under subsection (2) 21 days after the day of receiving the hardship notice
2 The lessor requires information under subsection (2) but does not receive any information in compliance with the requirement 28 days after the stated date of the notice under subsection (2)
3 The lessor requires information under subsection (2) and receives information in compliance with the requirement 21 days after the day of receiving the information
Regulations may prescribe shorter periods for consumer leases
(6) The regulations may provide for subsections (2), (3), (4) and (5) to have effect in relation to consumer leases prescribed by the regulations as if a particular reference in subsection (2) or (5) to a number of days were a reference to a lesser number of days prescribed by the regulations.
177C Notice of change
(1) A lessor that enters into an agreement with a lessee to change the consumer lease as a result of a hardship notice by the lessee must, not later than 30 days after the date of the agreement, give to the lessee a written notice setting out:
(a) particulars of the change in the terms of the lease; and
(b) any information required by the regulations.
Criminal penalty: 50 penalty units.
(1A) Subsection (1) does not apply if the lessor and the lessee agree to a change to the consumer lease that defers or otherwise reduces the obligations of the lessee under that lease for a period not exceeding 90 days.
(2) The lessor may, under subsection (1), give the lessee particulars only of a matter as changed instead of particulars of the change, but only if the lessor:
(a) makes it clear to the lessee that the matter has changed; or
(b) gives to the lessee a new set of terms and conditions relating to the lease.
(3) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
177D Changes by court
(1) If a lessor does not change a consumer lease as a result of a hardship notice by a lessee, the lessee may apply to the court to change the terms of the lease.
(2) The court may, after allowing the applicant and the lessor a reasonable opportunity to be heard:
(a) by order change the lease (but not so as to reduce the amount ultimately payable by the lessee to the lessor under the lease), and make such other orders as it thinks fit; or
(b) refuse to change the lease.
(3) The court may, if it thinks it appropriate in the circumstances, stay any enforcement proceedings under the lease, and make such other orders as it thinks fit, until the application has been determined.
177E Lessor may apply for variation of change
(1) A lessor under a consumer lease that has been changed by an order under subsection 177D(2) may apply to the court for an order varying or revoking the order.
(2) A lessor subject to a stay of enforcement proceedings or other order under subsection 177D(3) may apply to the court for an order varying or revoking the stay or order.
(3) On an application under this section, the court may vary or revoke the order or stay to which the application relates as it thinks fit, or may refuse the application.
177F Court may reopen unjust transactions
Power to reopen unjust transactions
(1) The court may, if satisfied on the application of a lessee that, in the circumstances relating to the relevant consumer lease at the time it was entered into or changed (whether or not by agreement), the lease or change was unjust, reopen the transaction that gave rise to the lease or change.
Matters to be considered by court
(2) In determining whether a term of a particular consumer lease is unjust in the circumstances relating to it at the time it was entered into or changed, the court is to have regard to the public interest and to all the circumstances of the case and may have regard to the following:
(a) the consequences of compliance, or noncompliance, with all or any of the provisions of the lease;
(b) the relative bargaining power of the parties;
(c) whether or not, at the time the lease was entered into or changed, its provisions were the subject of negotiation;