(d) whether or not it was reasonably practicable for the applicant to negotiate for the alteration of, or to reject, any of the provisions of the lease or the change;
(e) whether or not any of the provisions of the lease impose conditions that are unreasonably difficult to comply with, or not reasonably necessary for the protection of the legitimate interests of a party to the lease;
(f) whether or not the lessee, or a person who represented the lessee, was reasonably able to protect the interests of the lessee because of his or her age or physical or mental condition;
(g) the form of the lease and the intelligibility of the language in which it is expressed;
(h) whether or not, and if so when, independent legal or other expert advice was obtained by the lessee;
(i) the extent to which the provisions of the lease or change and their legal and practical effect were accurately explained to the lessee and whether or not the lessee understood those provisions and their effect;
(j) whether the lessor or any other person exerted or used unfair pressure, undue influence or unfair tactics on the lessee and, if so, the nature and extent of that unfair pressure, undue influence or unfair tactics;
(k) whether the lessor took measures to ensure that the lessee understood the nature and implications of the transaction and, if so, the adequacy of those measures;
(l) whether at the time the lease was entered into or changed, the lessor knew, or could have ascertained by reasonable inquiry at the time, that the lessee could not pay in accordance with its terms or not without substantial hardship;
(m) whether the terms of the transaction or the conduct of the lessor is justified in the light of the risks undertaken by the lessor;
(n) the terms of other comparable transactions involving other lessors and, if the injustice is alleged to result from excessive costs, the costs payable in comparable cases;
(o) any other relevant factor.
Representing lessee
(3) For the purposes of paragraph (2)(f), a person is taken to have represented a lessee if the person represented the lessee, or assisted the lessee to a significant degree, in the negotiations process prior to, or at, the time the consumer lease was entered into or changed.
Unforeseen circumstances
(4) In determining whether a consumer lease is unjust, the court is not to have regard to any injustice arising from circumstances that were not reasonably foreseeable when the lease was entered into or changed.
Conduct
(5) In determining whether to grant relief in respect of a consumer lease that it finds to be unjust, the court may have regard to the conduct of the parties to the proceedings in relation to the lease since it was entered into or changed.
(6) This section does not apply to a change to a consumer lease under this Subdivision.
177G Orders on reopening of transactions
The court may, if it reopens a transaction under this Subdivision, do any one or more of the following, despite any settlement of accounts or any agreement purporting to close previous dealings and create a new obligation:
(a) reopen an account already taken between the parties to the transaction;
(b) relieve the lessee from payment of any amount in excess of such amount as the court, having regard to the risk involved and all other circumstances, considers to be reasonably payable;
(c) set aside either wholly or in part or revise or alter an agreement made in connection with the transaction;
(d) give judgement for or make an order in favour of a party to the transaction of such amount as, having regard to the relief (if any) which the court thinks fit to grant, is justly due to that party under the consumer lease;
(e) give judgement or make an order against a person for delivery of goods to which the lease relates and which are in the possession of that person;
(f) make ancillary or consequential orders.
177H Applications by ASIC
(1) This section applies if ASIC considers that it is in the public interest to make an application under this Subdivision.
(2) ASIC may make an application under this Subdivision and has standing to represent the public interest.
(3) The application:
(a) may apply to any one or more consumer leases; and
(b) may apply to all or any class of consumer leases entered into by a lessor during a specified period (for example, all leases entered into during a specified period that are affected by a specified matter for which relief is sought).
177J Time limit
An application may not be brought under this Subdivision more than 2 years after the relevant consumer lease is terminated, discharged or otherwise comes to an end.
177K Joinder of parties
(1) If it appears to the court that a person other than a lessor (a third party) has shared in the profits of, or has a beneficial interest prospectively or otherwise in, a consumer lease that the court holds to be unjust, the court may make an order about the third party that the court considers appropriate.
(2) However, before making an order about the third party, the court must:
(a) join the third party as a party to the proceedings; and
(b) give the third party an opportunity to appear and be heard in the proceedings.
Division 8—Repossession, termination and enforcement of consumer leases
Subdivision A—Repossession of goods under consumer lease
178 Notice of repossession
(1) A lessor must not exercise any right under a consumer lease to take possession of goods subject to the lease unless the lessor has given the lessee 30 days’ written notice of the lessor’s intention to do so.
Criminal penalty: 50 penalty units.
(2) However, the lessor is not required to give the notice in accordance with this section if:
(a) the right arises under a lease granted for a fixed term at the end of that term; or
(b) the lessor believes on reasonable grounds that the lessee has disposed of goods hired under the lease, or intends to dispose of such goods, contrary to the terms of the lease; or
(c) the lessor has made reasonable attempts to locate the lessee but without success; or
(d) the lessee is insolvent; or
(e) the court authorises the lessor to do so.
(3) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Subdivision B—Termination of consumer lease by lessee
178A Termination before goods have been provided
(1) If:
(a) a consumer lease has been entered into; and
(b) the goods hired under the lease have not been provided;
then the lessee may, by written notice to the lessor, terminate the lease.
(2) Nothing in subsection (1) prevents the lessor from retaining or requiring payment of fees or charges incurred before the termination and which would have been payable under the consumer lease.
179 Termination after goods have been provided
Early termination of consumer leases for fixed terms
(1) A lessee may, at any time before the end of a consumer lease for a fixed term, end the lease by returning the goods hired under the lease to the lessor during ordinary business hours or at such other time as may be agreed with the lessor or fixed by the court on the application of the lessee.
Consumer leases for indefinite periods
(1A) A lessee under a consumer lease for an indefinite period may, at any time, end the lease by returning the goods hired under the lease to the lessor:
(a) during ordinary business hours; or
(b) at such other time as may be agreed with the lessor or fixed by the court on the application of the lessee.
Amount payable by lessee on termination
(2) The amount payable by a lessee on the termination of a consumer lease under this section is:
(a) the amount payable under the lease on such a termination; or
(b) the amount determined in accordance with the principles (if any) set out in the regulations for the purposes of this section;
whichever is the lesser.
179A Statement of amount payable on termination
(1) A lessor must, at the written request of a lessee, provide a written statement of the amount required to terminate a consumer lease as at such date as the lessee specifies. If so requested, the lessor must also provide details of the items which make up that amount.
(2) The statement must also contain:
(a) a statement to the effect that the amount payable to terminate the lease may change according to the date on which it is paid; and
(b) a statement to the effect that the lessee has no right to own the goods if the lease is terminated; and
(c) a statement to the effect that the lessee must return the goods to the lessor by a specified date; and
(d) any other matters prescribed by the regulations.
(3) A lessor must give a statement, complying with this section, within 7 days after the day the request is given to the lessor.
Criminal penalty: 50 penalty units.
(4) In the case of joint lessees, the statement need only be given to the lessee who requests the statement and not, despite section 194, to each joint lessee.
(5) Subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
179B Court may determine amount payable on termination if lessor does not
(1) If the lessor does not provide a statement of the amount payable to terminate a consumer lease in accordance with this Subdivision after a request is duly made by a lessee, the court may, on the application of the lessee, determine:
(a) the amount payable on the date of determination; and
(b) the amount by which it increases daily; and
(c) the period for which the determination is applicable.
(2) The consumer lease is discharged if:
(a) the goods hired under the lease are returned to the lessor within the applicable period; and
(b) an amount calculated in accordance with the determination is tendered to the lessor within the applicable period.
179C One‑off notice to be given the first time a direct debit default occurs
(1) This section applies if:
(a) a lessee authorises payment of an amount for a consumer lease by direct debit; and
(b) default occurs; and
(c) it is the first occasion the default occurs.
(2) The lessor must give the lessee a notice, complying with this section, within 14 days of the default occurring.
Criminal penalty: 50 penalty units.
(3) The notice must contain the information prescribed by the regulations.
(4) Subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) This section does not affect any other requirement under this Code to give a notice.
Subdivision C—Enforcement of consumer leases
179D Requirements to be met before lessor can enforce consumer lease against defaulting lessee
Enforcement of consumer lease
(1) A lessor must not begin enforcement proceedings against a lessee in relation to a consumer lease unless:
(a) the lessee is in default under the lease; and
(b) the lessor has given the lessee a default notice, complying with this section, allowing the lessee a period of at least 30 days from the date of the notice to remedy the default; and
(c) the default has not been remedied within that period.
Criminal penalty: 50 penalty units.
Note: If a lessee has given a lessor a hardship notice or a postponement request there may be extra requirements that the lessor must comply with before beginning enforcement proceedings—see sections 179F and 179H.
Default notice requirements
(2) A default notice must contain a prominent heading at its top stating that it is a default notice and specify:
(a) the default; and
(b) the action necessary to remedy the default; and
(c) a period for remedying the default; and
(d) the date after which enforcement proceedings in relation to the default, and, if relevant, repossession of goods hired under the lease may begin if the default has not been remedied; and
(e) the information prescribed by the regulations about the lessee’s right to:
(i) give a hardship notice under section 177B; or
(ii) give a postponement request under section 179H; or
(iii) make an application to the court under sections 177D and 179K; and
(f) the information prescribed by the regulations about:
(i) the AFCA scheme; and
(ii) the lessee’s rights under that scheme; and
(g) that a subsequent default of the same kind that occurs during the period specified for remedying the original default may be the subject of enforcement proceedings without further notice if it is not remedied within the period; and
(h) that, under the Privacy Act 1988, a credit reporting body (within the meaning of that Act) may collect and hold default information (within the meaning of that Act) in relation to the default; and
(i) any other information prescribed by the regulations.
When default notice not required
(3) A lessor is not required to give a default notice or to wait until the period specified in the default notice has elapsed, before beginning enforcement proceedings, if:
(a) the lessor reasonably believes that it was induced by fraud on the part of the lessee to enter into the consumer lease; or
(b) the lessor has made reasonable attempts to locate the lessee but without success; or
(c) the court authorises the lessor to begin the enforcement proceedings; or
(d) the lessor reasonably believes that the lessee has disposed of goods hired under the lease, or intends to dispose of such goods, contrary to the terms of the lease; or
(e) the lessee becomes insolvent after entering into the consumer lease.
Non‑remedial default
(4) If the lessor reasonably believes that a default is not capable of being remedied:
(a) the default notice need only specify the default; and
(b) the lessor may begin the enforcement proceedings after the period of 30 days from the date of the notice.
Strict liability
(5) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
179E Defaults may be remedied
(1) If a default notice under section 179D states that the lessor intends to take action because the lessee is in default under the consumer lease, the lessee may remedy the default within the period specified in the notice, and the lease is then reinstated and any acceleration clause cannot operate.
(2) A lessee does not remedy the default if, at the end of the period, the lessee is in default under the consumer lease because of the breach specified in the notice or because of a subsequent breach of the same type.
179F Effect of hardship notices on enforcement
(1) This section applies if:
(a) a lessor is required to give a default notice under section 179D before beginning enforcement proceedings; and
(b) before or after the lessor gives the default notice, the lessee gives the lessor a hardship notice (the current hardship notice) under section 177B; and
(c) either:
(i) in the 4 months before the current hardship notice is given, the lessee had not given the lessor another hardship notice; or
(ii) in that 4‑month period, the lessee had given the lessor one or more other hardship notices, but the lessor reasonably believes that the basis on which the current hardship notice was given is materially different from the bases on which the other hardship notices were given.
(2) The lessor must not begin enforcement proceedings against the lessee unless:
(a) the lessor has given the lessee a notice under paragraph 177B(4)(b), in response to the current hardship notice, stating that the lessor and the lessee have not agreed to change the consumer lease; and
(b) the period of 14 days, starting on the day the lessor gave the notice under paragraph 177B(4)(b), has expired.
Criminal penalty: 50 penalty units.
Note: The lessor must allow the lessee at least 30 days from the date of the default notice to remedy the default—see section 179D. The 14‑day period in subsection (2) may end before, at the same time as, or after the end of the period for remedying the default specified in the default notice.
(3) However, the lessor may take possession of goods hired under a consumer lease if the lessor reasonably believes that:
(a) the lessee has removed or disposed of the goods, or intends to remove or dispose of them; or
(b) urgent action is necessary to protect the goods.
(4) Subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
179G Requirements to be met before lessor can enforce an acceleration clause
(1) An acceleration clause of a consumer lease is to operate only if:
(a) the lessee is in default under the lease; and
(b) the lessor has given to the lessee a default notice under section 179D; and
(c) the default notice contains an additional statement of:
(i) the manner in which the liabilities of the lessee under the consumer lease would be affected by the operation of the acceleration clause; and
(ii) the amount required to terminate the lease (as accelerated); and
(d) the default has not been remedied within the period specified in the default notice (unless the lessor reasonably believes that the default is not capable of being remedied).
(2) However, a lessor is not required to give a default notice under section 179D or to wait until the period specified in the default notice has elapsed before bringing an acceleration clause into operation, if:
(a) the lessor reasonably believes that it was induced by fraud on the part of the lessee to enter into the consumer lease; or
(b) the lessor has made reasonable attempts to locate the lessee but without success; or
(c) the court authorises the lessor not to do so; or
(d) the lessor reasonably believes that the lessee has removed or disposed of goods hired under a consumer lease, or intends to remove or dispose of goods hired under the lease, or that urgent action is necessary to protect the goods.
179GA Limit on amount that may be recovered if there is default under a consumer lease