National Consumer Credit Protection Act 2009

SCHEDULE 1 - NATIONAL CREDIT CODE  

Note:

See section 3 of the National Credit Act.

PART 5 - ENDING AND ENFORCING CREDIT CONTRACTS, MORTGAGES AND GUARANTEES  

Division 1 - Ending of credit contract by debtor etc.  

Subdivision A - Paying out contract etc.  

85   Surrender of mortgaged goods and goods subject to sale by instalments  
General principle

85(1)    
If:

(a) a credit contract takes the form of a sale of goods by instalments and title in the goods does not pass until all instalments are paid; or

(b) the credit provider has a mortgage over goods of the debtor or guarantor;

the debtor or mortgagor may give written notice of an intention to return the goods to the credit provider or, if the goods are in the credit provider ' s possession, require the credit provider in writing to sell the goods.

Delivery of goods

85(2)    
A debtor or mortgagor may return the goods to the credit provider at the credit provider ' s place of business during ordinary business hours within 7 days of the date of the notice or within such other period or at such other time or place as may be agreed with the credit provider.

Notice of value

85(3)    
The credit provider must, within 14 days after a debtor or mortgagor returns the goods or requires the credit provider to sell the goods, give the debtor or mortgagor a written notice containing the estimated value of the goods and any other information required by the regulations.

Return or sale of goods

85(4)    
If the debtor or mortgagor, within 21 days after the notice under subsection (3) is given, requests by written notice return of the goods to the debtor or mortgagor or withdraws the requirement to sell the goods (and the debtor is not in default under the terms of the credit contract), the credit provider must return to the debtor or mortgagor any goods returned by the debtor or mortgagor and must not comply with the requirement.

Nominated purchaser

85(5)    
The debtor or mortgagor may, within 21 days after the notice under subsection (3) is given, nominate in writing a person who is prepared to purchase the goods from the credit provider at the estimated value or at any greater amount for which the credit provider has obtained a written offer to buy the goods. The credit provider must offer to sell the goods to that person for the estimated value or, if there is a written offer to buy the goods for a greater amount, that amount.

Sale of goods by credit provider

85(6)    
The credit provider must, if the goods are not required to be returned under subsection (4), as soon as reasonably practicable (or at such other time as the credit provider and the debtor or mortgagor agree) sell the goods in accordance with subsection (5) or, if no buyer is nominated or the nominated buyer under that subsection does not buy the goods, for the best price reasonably obtainable.

Amount to be credited to debtor or mortgagor

85(7)    
The credit provider must credit the debtor or mortgagor with a payment equivalent to the proceeds of the sale less any amounts which the credit provider is entitled to deduct from those proceeds. On the sale of the goods, the amount required to pay out the contract becomes due.

Deductions from proceeds

85(8)    
A credit provider that sells mortgaged goods under this section is entitled to deduct from the proceeds of that sale only the following amounts:

(a) the amount currently secured by the mortgage in relation to the credit contract or guarantee, not being more than the amount required to discharge the contract or guarantee;

(b) the amount payable to discharge any prior mortgage to which the goods were subject;

(c) the amounts payable in successive discharge of any subsequent mortgages to which the goods were subject and of which the credit provider had notice;

(d) the credit provider ' s reasonable enforcement expenses;

(e) the expenses reasonably incurred by the credit provider in connection with the possession and sale of the mortgaged goods.

Notice of amount credited and other matters

85(9)    
The credit provider must give the debtor or mortgagor a written notice stating the gross amount realised on the sale, the net proceeds of the sale, the amount credited to the debtor or mortgagor and the amount required to pay out the credit contract or the amount due under the guarantee.

Offence - credit provider

85(10)    
A credit provider that contravenes a requirement of this section commits an offence.

Criminal penalty: 50 penalty units.

Strict liability offence

85(11)    
Subsection (10) is an offence of strict liability.

Note:

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