Consumer Credit Legislation Amendment (Enhancements) Act 2012 (130 of 2012)

Schedule 1   Enhancements

Part 2   Remedies for unfair or dishonest conduct by credit service providers

National Consumer Credit Protection Act 2009

10   After section 180

Insert:

180A Orders to remedy unfair or dishonest conduct by credit service providers

(1) The court may make one or more of the orders described in subsection (2) if the court is satisfied that:

(a) a person (the defendant ) provided a credit service to a consumer (the plaintiff ); and

(b) the defendant engaged in conduct that:

(i) was connected with the provision of the service; and

(ii) was unfair or dishonest; and

(c) the conduct had one or more of the following results:

(i) the plaintiff entered a credit contract, consumer lease, mortgage or guarantee that the plaintiff would not have entered apart from the conduct;

(ii) the plaintiff entered a credit contract, consumer lease, mortgage or guarantee whose terms were different from a credit contract, consumer lease, mortgage or guarantee the plaintiff would have entered apart from the conduct;

(iii) the plaintiff became liable to pay fees, costs or charges to the defendant or someone else.

(2) The orders are as follows:

(a) an order that the defendant take, or refrain from taking, specified action;

(b) an order that the defendant pay the plaintiff a specified amount;

(c) an order that a specified amount is not due or owing by the plaintiff to the defendant;

(d) any other order the court considers appropriate to:

(i) redress the unfairness or dishonesty; or

(ii) prevent the defendant from profiting from the plaintiff by engaging in the conduct;

except an order that affects a credit contract, consumer lease, mortgage or guarantee to which the conduct related.

Determining whether conduct was unfair or dishonest

(3) In determining whether conduct was unfair or dishonest, the court:

(a) must have regard to the extent (if any) to which one or more of the circumstances described in subsection (4) existed; and

(b) must consider it more likely that the conduct was unfair or dishonest the more any of those circumstances existed and the more any of them affected the plaintiff's interests.

This does not limit the matters to which the court may have regard.

(4) The circumstances are as follows:

(a) the plaintiff was at a special disadvantage in dealing with the defendant in relation to the transaction involving:

(i) the conduct; and

(ii) a credit contract, consumer lease, mortgage or guarantee to which the conduct related; and

(iii) any other contract requiring the plaintiff to make payments for the purposes of which it is reasonable to expect the plaintiff would or did enter such a credit contract, consumer lease, mortgage or guarantee;

(b) the plaintiff was a member of a class whose members were more likely than people who were not members of the class to be at such a disadvantage;

(c) if the plaintiff was a member of a class referred to in paragraph (b) - a reasonable person would consider that the conduct was directed at that class;

(d) the plaintiff was unable, or considered himself or herself unable, to make:

(i) a credit contract with a credit provider other than the credit provider to which the conduct related; or

(ii) a consumer lease with a lessor other than the lessor to which the conduct related; or

(iii) a mortgage with a mortgagee other than the mortgagee to which the conduct related; or

(iv) a guarantee with a beneficiary other than the beneficiary to which the conduct related;

(e) the conduct involved a technique that:

(i) should not in good conscience have been used; or

(ii) manipulated the plaintiff;

(f) the defendant could determine or significantly influence the terms of a contract covered by subparagraph (a)(ii) or (iii);

(g) the terms of the transaction described in paragraph (a) were less favourable to the plaintiff than the terms of a comparable transaction.

When order may be made

(5) 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 defendant first started engaging in the conduct.

Applications for order

(6) For the purposes of paragraph (5)(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

(7) 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.

When this section does not apply

(8) This section does not apply to the provision of credit assistance by a person who is (or after the provision of the assistance becomes):

(a) a credit provider under the credit contract to which the assistance relates; or

(b) a lessor under the consumer lease to which the assistance relates; or

(c) a mortgagee under a mortgage in relation to the credit contract to which the assistance relates; or

(d) a beneficiary of a guarantee in relation to the credit contract to which the assistance relates.