Corporations Act 2001

CHAPTER 7 - FINANCIAL SERVICES AND MARKETS  

Note: This Chapter applies to a CCIV in a modified form: see Division 4 of Part 8B.7 .

PART 7.7A - BEST INTERESTS OBLIGATIONS AND REMUNERATION  

Division 3 - Charging ongoing fees to clients  

Subdivision C - Consent required for deduction of ongoing fees from accounts  

SECTION 962S   FEE RECIPIENT MUST NOT ARRANGE FOR DEDUCTION OF ONGOING FEES WITHOUT CONSENT OR ACCEPT SUCH DEDUCTIONS  

962S(1)    

This section applies if:

(a)    an ongoing fee is, or will be, payable to a fee recipient under an ongoing fee arrangement; and

(b)    a person (the account holder ) holds an account with another person (the account provider ) who is not the fee recipient; and

(c)    the account is not:

(i) an account linked to a credit card; or

(ii) a basic deposit product; and

(d)    the fee recipient proposes to arrange with the account provider for the amount of the ongoing fee to be deducted from the account holder ' s account.

962S(2)    
To avoid doubt, the fee recipient proposes to arrange with the account provider for the amount of the ongoing fee to be deducted from the account holder ' s account:

(a)    if the fee recipient is a financial services licensee - by doing so directly or through another entity such as a representative of the financial services licensee; or

(b)    if the fee recipient is a representative of a financial services licensee - by doing so directly or through another entity such as the financial services licensee.

Fee recipient must not arrange deductions without consent

962S(3)    
Subject to subsection (4) , the fee recipient must not arrange for the account provider to deduct the amount from the account unless all of the following are satisfied:

(a)    the account holder has given the fee recipient written consent for the fee recipient to arrange for amounts to be deducted from the account in respect of ongoing fees under the ongoing fee arrangement;

(b)    

if requirements that apply in relation to the consent are determined under section 962T - the consent complies with those requirements;

(c)    the fee recipient has given a copy of the account holder ' s consent to the account provider;

(d)    at the time of giving the copy of the consent to the account provider:

(i) the consent has not been withdrawn under paragraph 962U(1)(a) ; and

(ii) if the consent has been varied under paragraph 962U(1)(b) - the consent as varied still allows for the deduction to be made; and

(iii) the consent has not ceased to have effect under section 962V .

962S(4)    
If the account holder holds the account jointly with one or more other persons, the fee recipient must not arrange for deductions from the account unless all of the paragraphs in subsection (3) are satisfied in relation to the account holder as well as each of those other persons as account holders.

962S(5)    
A person contravenes this subsection if the person contravenes subsection (3) or (4) .

Note: This subsection is a civil penalty provision (see section 1317E ).

Fee recipient must not accept deductions made without consent

962S(6)    
Subject to subsection (7) , if the fee recipient has arranged with the account provider, with the account holder ' s consent, for an amount to be deducted from the account, the fee recipient must not accept payment of the amount unless at the time the payment is made to the fee recipient all of the following are satisfied:

(a)    the consent has not been withdrawn under paragraph 962U(1)(a) ;

(b)    if the consent has been varied under paragraph 962U(1)(b) - the consent as varied still allows for the deduction to be made;

(c)    the consent has not ceased to have effect under section 962V .

962S(7)    
If the account holder holds the account jointly with one or more other persons, the fee recipient must not accept the payment unless all of the paragraphs in subsection (6) are satisfied in relation to the account holder as well as each of those other persons as account holders.

962S(8)    
A person contravenes this subsection if the person contravenes subsection (6) or (7) .

Note: This subsection is a civil penalty provision (see section 1317E ).

962S(9)    
However, subsection (8) does not apply if an amount accepted in contravention of subsection (6) or (7) is repaid into the account holder ' s account within 10 business days of the day on which the payment was accepted.