National Consumer Credit Protection Act 2009

SCHEDULE 1 - NATIONAL CREDIT CODE  

Note:

See section 3 of the National Credit Act.

PART 11 - CONSUMER LEASES  

Division 8 - Repossession, termination and enforcement of consumer leases  

Subdivision C - Enforcement of consumer leases  

179D   Requirements to be met before lessor can enforce consumer lease against defaulting lessee  

Enforcement of consumer lease

179D(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

179D(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

179D(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

179D(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

179D(5)    
Subsection (1) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code .