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 D - Postponement of enforcement proceedings  

179H   Postponement of exercise of rights  

Postponement request

179H(1)    
A lessee who has been given a default notice under section 179D may, at any time before the end of the period specified in the notice, request (a postponement request ), orally or in writing, that the lessor negotiate a postponement of:

(a) the enforcement proceedings; or

(b) any action taken under such proceedings; or

(c) the operation of any applicable acceleration clause.

Lessor ' s notice about postponement

179H(2)    
If the lessee gives the postponement request, the lessor must, within 21 days after the day of receiving the request, give the person a written notice:

(a) that states whether or not the lessor agrees to negotiate a postponement; and

(b) if the lessor does not agree to negotiate - that states:

(i) the name of the AFCA scheme; and

(ii) the person ' s rights under that scheme; and

(iii) the reasons for not agreeing to negotiate.

Criminal penalty: 30 penalty units.

Enforcement proceedings

179H(3)    
If the lessee gives the postponement request, the lessor must not begin enforcement proceedings unless:

(a) the lessor has given the lessee a notice under subsection (2) in response to the postponement request; and

(b) the period of 14 days, starting on the day the lessor gives the notice under subsection (2), has expired.

Criminal penalty: 50 penalty units.

Note:

The lessor must allow the lessee at least 30 days from the date of the default notice to remedy the default - see section 179D. The 14-day period in subsection (3) may end before, at the same time as, or after the end of the period for remedying the default specified in the default notice.

179H(4)    
However, the lessor may take possession of goods hired under the consumer lease if the lessor reasonably believes that:

(a) the lessee has removed or disposed of the goods, or intends to remove or dispose of them; or

(b) urgent action is necessary to protect the goods.

Strict liability

179H(5)    
Subsections (2) and (3) are offences of strict liability.

Note:

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