National Consumer Credit Protection Act 2009

CHAPTER 4 - REMEDIES  

PART 4-2 - POWER OF THE COURT TO GRANT REMEDIES  

Division 2 - Power of the court to grant remedies  

SECTION 179   OTHER ORDERS TO COMPENSATE LOSS OR DAMAGE  
Court may make other orders to compensate loss or damage

179(1)   [ Powers]  

If:

(a) a person (the defendant ) has contravened a civil penalty provision or has committed an offence against this Act (other than the National Credit Code); and

(b) another person (the plaintiff ) has suffered, or is likely to suffer, loss or damage as a result of the contravention or commission of the offence;

the court may make such order as the court considers appropriate against the defendant to:

(c) compensate the plaintiff, in whole or in part, for the loss or damage; or

(d) prevent or reduce the loss or damage suffered, or likely to be suffered, by the plaintiff.

Note:

An order may be made under this subsection whether or not a declaration of contravention has been made under section 166 .

179(2)   [ Example of orders court may make]  

Without limiting subsection (1), examples of orders the court may make include:

(a) an order declaring the whole or any part of a contract, deed or arrangement made between the defendant and the plaintiff to be void and, if the court considers it appropriate, to have been void from the time it was entered or at all times on and after a specified day before the order is made; and

(b) an order varying such a contract, deed or arrangement in such manner as is specified in the order and, if the court considers it appropriate, declaring the contract, deed or arrangement to have had effect as so varied on and after a specified day before the order is made; and

(c) an order refusing to enforce any or all of the terms of such a contract, deed or arrangement; and

(d) an order directing the defendant to refund money or return property to the plaintiff; and

(e) an order directing the defendant to pay to the plaintiff the amount of loss or damage the plaintiff suffered; and

(f) an order directing the defendant, at the defendant's own expense, to supply specified services to the plaintiff.

When order may be made

179(3)    
The court may make the order only if:

(a) the plaintiff or ASIC (on behalf of the plaintiff) applies for an order under this section; and

(b) the application is made within 6 years of the day the cause of action that relates to the contravention or commission of the offence accrued.

Applications for order

179(4)    
For the purposes of paragraph (3)(a), ASIC may make an application on behalf of the plaintiff, but only if the plaintiff has given consent in writing before the application is made.

Recovery of amount as a debt

179(5)    
If the court makes an order that the defendant pay an amount specified in the order to the plaintiff, the plaintiff may recover the amount as a debt due to the plaintiff.

Presumption in favour of certain orders

179(6)    

Subsection (7) applies if:

(a) the defendant is a credit provider who has contravened section 133 by entering into, or increasing the credit limit of, a credit contract (the illegal contract ) that is not a credit contract for a reverse mortgage; and

(b) the debtor ' s obligations under the illegal contract are secured by a mortgage over the debtor ' s principal place of residence; and

(c) the court is satisfied that, at any time in the period in which an assessment needed to be made to comply with section 128 in relation to the illegal contract:

(i) there was a credit provider (whether the defendant or not) offering credit through a reverse mortgage (whether or not the credit provider actually made such an offer to the debtor); and

(ii) the debtor would have been eligible to enter into a credit contract for the reverse mortgage; and

(iii) the credit contract for the reverse mortgage would not have been unsuitable for the debtor under section 133 ; and

(d) the plaintiff, or ASIC on behalf of the plaintiff, applies for an order under this section to let the plaintiff reside in the place to prevent or reduce loss or damage suffered or likely to be suffered by the plaintiff vacating the place.

179(7)    

The court must consider the order appropriate to prevent or reduce the loss or damage and make the order unless the court is satisfied that the order would adversely affect a person other than the debtor and the defendant.