(a) that there will be no change in the credit fees and charges as so disclosed and no new fees or charges imposed;
(b) that the debtor will pay the fees and charges required by the contract at the times required by the contract.
Disclosures in consumer leases
(5) Disclosures for the purposes of this Code relating to consideration, charges and payments in a consumer lease may be made on the assumptions that there will be no change in the matters disclosed and no new charges imposed.
When information is ascertainable
(6) Information required to be disclosed for the purposes of this Code, which is not otherwise ascertainable, is taken to be ascertainable if it is ascertainable, as at the date the disclosure is made, on the basis of assumptions set out in this section or in the regulations.
Disclosure of names
(7) Information disclosed for the purposes of this Code as to a name is taken to be correctly disclosed if the information is sufficient to identify the person concerned.
181 Tolerances relating to contracts and other documents
An amount of interest, a fee or charge or any other amount charged, payable or calculated under or in connection with a credit contract, mortgage, guarantee or consumer lease is, for the purposes of this Code, taken to comply with this Code if the amount is within tolerances allowed by the regulations.
182 Regulations
The regulations may vary an assumption set out in this Division and may provide for additional assumptions.
Division 2—Documentary provisions
183 Form of notices
(1) The regulations may prescribe the form of any notices required or authorised to be given under this Code and may require such notices to contain specified information.
(2) A notice required to be given by a mortgagee under this Code may include information required to be given in the same situation under an Act, and the notice may be included in any notice given under that Act.
(3) A notice required or authorised to be given under this Code is to be in writing unless this Code or the regulations otherwise provide.
184 Legibility and language
(1) A credit contract, mortgage or guarantee or a notice given by a credit provider under this Code, other than a document transmitted by electronic communication:
(a) must be easily legible; and
(b) to the extent that it is printed or typed must conform with the provisions of the regulations as to print or type; and
(c) must be clearly expressed.
(2) A credit contract, mortgage or guarantee or a notice given by a credit provider under this Code, if transmitted by electronic communication:
(a) must be easily legible; and
(b) must conform with the provisions of the regulations, if any, as to content, legibility and accompanying information; and
(c) must be clearly expressed.
(3) If the court is satisfied, on application by ASIC, that a provision of a credit contract, mortgage or guarantee or a notice given by a credit provider under this Code does not comply with the requirements of this section, it may prohibit the credit provider from using a provision in the same or similar terms in future credit contracts, mortgages or guarantees or notices.
(4) A credit provider that contravenes a prohibition imposed under subsection (3) commits an offence.
(1) A credit provider must in accordance with this section, at the written request of a debtor, mortgagor or guarantor, provide to the debtor, mortgagor or guarantor a copy of:
(a) the credit contract, mortgage or guarantee; or
(b) any credit‑related insurance contract in the credit provider’s possession; or
(c) a notice previously given to the debtor, mortgagor or guarantor under this Code.
Criminal penalty: 30 penalty units.
(2) The copy must be provided:
(a) within 14 days, if the original came into existence one year or less before the request is given; or
(b) within 30 days, if the original came into existence more than one year before the request is given.
Note: Section 196 provides for the date on which notice is taken to be given.
(3) A credit provider must provide a copy of a notice which requires a debtor, mortgagor or guarantor to take action if requested in accordance with subsection (1) even though the contract has been discharged or terminated but only if the request is made within 2 years of the discharge or termination.
Criminal penalty: 30 penalty units.
(4) Subsections (1) and (3) are offences of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
185A Records of nominations of persons to occupy reverse mortgaged properties
(1) A credit provider under a credit contract for a reverse mortgage that provides for the debtor to nominate to the credit provider a person who is to be allowed to occupy the reverse mortgaged property, and to revoke such a nomination, must keep in accordance with the regulations a record of any such nominations and revocations.
(2) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the requirement.
Criminal penalty: 50 penalty units.
186 Signing of documents
(1) It is sufficient compliance with a requirement under this Code that a document be signed by a person if the person’s signature is written on the document by another person by or under the authority of the person required to sign.
(2) This section has effect subject to section 199 (Conduct of agents and related matters).
187 Application of the Electronic Transactions Act 1999
(1) Without limiting the provisions of this Code, it is declared that any contract, mortgage or guarantee referred to in this Code may be made in accordance with the Electronic Transactions Act 1999.
(2) Without limiting the provisions of this Code, it is declared that any requirement or permission by or under this Code, however expressed:
(a) to give information in writing; or
(b) to provide a signature; or
(c) to produce a document; or
(d) to record information in writing; or
(e) to retain a document;
may be met in accordance with the Electronic Transactions Act 1999.
Example: Giving information would include the requirement under subsection 36(1) to provide a statement of amount owing.
Note 1: Subsection 9(5) of the Electronic Transactions Act 1999 has a definition relating to the giving of information. That definition provides, generally, that giving information includes, but is not limited to, the following:
(a) making an application;
(b) making or lodging a claim;
(c) giving, sending or serving a notification;
(d) lodging a return;
(e) making a request;
(f) making a declaration;
(g) lodging or issuing a certificate;
(h) making, varying or cancelling an election;
(i) lodging an objection;
(j) giving a statement of reasons.
Note 2: See regulations made under the Electronic Transactions Act 1999 for exemptions relating to electronic transactions.
Division 3—General provisions
188 Assignment by credit provider
(1) If the rights of a credit provider under a credit contract, mortgage or guarantee are assigned or pass by law to another person, this Code from then on applies to that other person and does not impose any further obligation on the credit provider.
(2) The debtor, mortgagor or guarantor has and may exercise the same rights in respect of the credit contract, mortgage or guarantee against the assignee as the debtor, mortgagor or guarantor has against the credit provider.
(3) Subsection (1) does not apply while the credit provider continues to receive payments from the debtor, or would continue to do so if the debtor complied with the credit contract.
189 Assignment by debtor, mortgagor or guarantor
(1) If the rights of a debtor, mortgagor or guarantor under a credit contract, mortgage or guarantee are assigned or pass by law to another person, this Code from then on applies to that other person and does not confer any further rights on the debtor, mortgagor or guarantor.
(2) Subsection (1) does not apply if the rights are assigned or pass by law to a corporation which is neither a trustee for the debtor, mortgagor or guarantor nor an executor of the debtor’s, mortgagor’s or guarantor’s estate.
(3) Subsection (1) does not affect a requirement which is made of a debtor or mortgagor under section 52.
190 Appropriation of payments
(1) A debtor who is liable to a credit provider under 2 or more credit contracts may require the credit provider by written notice to apply a payment to a particular one of those contracts or to divide the payment between them in a specified manner.
(2) A credit provider that contravenes a requirement under this section commits an offence.
Criminal penalty: 30 penalty units.
(3) Subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(4) A debtor may not make a requirement under this section if the debtor and the credit provider have previously agreed as to the application of the payment concerned in relation to the credit contracts under which the debtor is liable to the credit provider.
191 Contracting out
(1) A provision of a contract or other instrument by which a person seeks to avoid or modify the effect of this Code is void.
(2) A provision of a contract or other instrument by which a person seeks to have the debtor, mortgagor or guarantor indemnify the credit provider for any loss or liability arising under this Code is void.
(3) A credit provider that is a party to any such contract or other instrument commits an offence.
Criminal penalty: 100 penalty units.
(4) Subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) Subsection (2) does not affect the operation of subsection 60(2).
192 Indemnities
(1) An indemnity for any liability under this Code is not void, and cannot be declared void, on the grounds of public policy, despite any rule of law to the contrary.
(2) The liabilities to which this section applies include the following:
(a) a liability for any criminal or civil penalty incurred by any person under this Code;
(b) a payment in settlement of a liability or alleged liability under this Code;
(c) a liability under another indemnity for any liability under this Code.
(3) This section is subject to subsection 191(2).
(4) This section does not derogate from any other rights and remedies that exist apart from this section.
193 Effect of noncompliance
(1) A credit contract, mortgage or guarantee or any other contract is not illegal, void or unenforceable because of a contravention of this Code unless this Code contains an express provision to that effect.
(2) Except as provided by this section, this Code does not derogate from rights and remedies that exist apart from this Code.
194 Giving notice or other document
Application
(1) This section applies as follows:
(a) this section applies (subject to this subsection) to notices or other documents that are required to be given for the purposes of this Code;
(b) this subsection and subsections (3) and (7) apply, but the remainder of this section does not apply, to precontractual statements and notices given under section 16;
(c) subsections (4), (5) and (6) do not apply to default notices;
(d) this section applies despite the provisions of any other section of this Code (except subsections 36(4) and 83(4)) to the contrary.
Note: Examples of notices or other documents to which this section applies are those required to be given under sections 20, 33, 36, 43, 56, 57 and 83.
Unsuccessful attempts by credit provider
(2) A credit provider is relieved from the obligation to give a notice or other document to a person if:
(a) the credit provider has previously made a reasonable (but unsuccessful) attempt to give a notice or other document in accordance with this Code by leaving it at, or by sending it by post or electronic communication to the appropriate address of the person under section 195; and
(b) the credit provider has reasonable grounds for believing that the person can no longer be contacted at that address.
Joint debtors etc.—general obligation
(3) In the case of joint debtors, mortgagors or guarantors, a notice or other document must be given to each debtor, mortgagor or guarantor, except as provided by this section.
Joint debtors etc.—nomination of one of them
(4) A notice or other document may be given to any 2 or more joint debtors, mortgagors or guarantors by being given to one of the joint debtors, mortgagors or guarantors nominated by them to receive the notice or other document on their behalf. The notice or other document need not be addressed to all of them.
Joint debtors etc.—same address
(5) A single copy of a notice or other document may be given to any 2 or more joint debtors, mortgagors or guarantors at the same address if each of them has consented to a single copy being given and the notice or other document is addressed jointly to them. The procedure prescribed by this subsection is an alternative to the procedure prescribed by subsection (4).
Nominated persons generally
(6) A notice or other document may be given to a person by being given to any other person nominated by the person to receive the notice or other document on his or her behalf. However—
(a) a debtor, mortgagor or guarantor cannot nominate the credit provider or a person associated with the credit provider; and
(b) a mortgagor cannot nominate the debtor if the mortgage is given by a guarantor; and
(c) a guarantor cannot nominate the debtor.
Lawyers
(7) A notice or other document may be given to a person by being given to a lawyer acting for the person in the matter concerned.
Withdrawal of nomination or consent
(8) A nomination or consent under this section ceases to have effect if it is withdrawn by the person who made or gave it.
Form of nomination or consent
(9) A nomination or consent under this section (or the withdrawal of any such nomination or consent) must be in the form required by the regulations.
195 Manner of giving notice or other document
(1) If this Code requires or permits a notice or other document to be given to a person who is a debtor, mortgagor or guarantor, the appropriate address of the person is:
(a) an address nominated in writing by that person to the person giving the notice or other document; or
(b) if there is no such nomination, the address of the place of residence of that person last known to the person giving the notice or other document.
Note: A nominated address may be an electronic address.
(2) An appropriate address of any other person is:
(a) an address nominated in writing by that person to the person giving the notice or other document; or
(b) the address of the place of residence or business of that person last known to the person giving the notice or other document.
Note: A nominated address may be an electronic address.
(3) If a person nominates an address under paragraph (1)(a) or (2)(a), the person may, by notice in writing to the person giving the notice or other document referred to in subsection (1), change the nominated address or cancel the nomination.
(4) A nomination under this section ceases to have effect if it is cancelled by the person who made it.
196 Date of notice or other document
(1) For the purposes of this Code a notice or other document is taken to be given:
(a) in the case of a notice or other document given personally—on the date it bears or the date it is received by the addressee, whichever is the later; or
(b) in the case of a notice or other document sent by post—on the date it bears or the date when it would have been delivered in the ordinary course of post, whichever is the later; or
(c) in the case of a notice or other document given by electronic communication—at the time that subsection 14(3) of the Electronic Transactions Act 1999 provides is the time of receipt of the electronic communication.
(2) For the purposes of this Code, the date of a notice or other document is the date it is taken to be given in accordance with this section.
197 Extensions of time
The court may extend a period if authorised by this Code to do so even though the period has elapsed.
198 Orders of court
An order of the court in force under this Code, including such an order as varied from time to time, has effect according to its tenor.
199 Conduct of agents and related matters
(1) The conduct of an officer, agent or employee of a credit provider acting within his or her actual or ostensible authority will be imputed to the credit provider and taken to be conduct of the credit provider.
(2) A person cannot authorise a credit provider, or a person associated with a credit provider, to enter into a credit contract, mortgage or guarantee on the person’s behalf. This subsection does not prevent a credit provider from authorising a person associated with the credit provider to enter into a credit contract on behalf of the credit provider.
(3) A credit provider or person associated with a credit provider that purports to act as agent of a debtor, mortgagor or a guarantor in entering into a credit contract or a mortgage or guarantee commits an offence.
Criminal penalty: 50 penalty units.
(4) A credit provider is not, for the purposes of this Code, taken to know or have reason to believe something because an officer, agent or employee of the credit provider does so, unless the knowledge or reason to believe that thing is acquired by the officer, agent or employee acting in that capacity and in connection with the transaction concerned.