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 2 - Enforcement of credit contracts, mortgages and guarantees  

89A   Effect of hardship notices on enforcement  

89A(1)    
This section applies if:

(a) a credit provider is required to give a default notice under section 88 before beginning enforcement proceedings; and

(b) before or after the credit provider gives the default notice, the debtor gives the credit provider a hardship notice (the current hardship notice ) under section 72; and

(c) either:

(i) in the 4 months before the day the current hardship notice is given, the debtor had not given the credit provider another hardship notice; or

(ii) in that 4-month period, the debtor had given the credit provider one or more other hardship notices, but the credit provider reasonably believes that the basis on which the current hardship notice was given is materially different from the bases on which the other hardship notices were given.

89A(2)    
The credit provider must not begin enforcement proceedings against the debtor unless:

(a) the credit provider has given the debtor a notice under paragraph 72(4)(b), in response to the current hardship notice, stating that the credit provider and debtor have not agreed to change the credit contract; and

(b) the period of 14 days, starting on the day the credit provider gives the notice under paragraph 72(4)(b), has expired.

Criminal penalty: 50 penalty units.

Note:

The credit provider must allow the debtor at least 30 days from the date of the default notice to remedy the default - see section 88. The 14-day period in subsection (2) may end before, at the same time as, or after the end of the period for remedying the default specified in the default notice.

89A(3)    
However, the credit provider may take possession of mortgaged goods if the credit provider reasonably believes that:

(a) the debtor or mortgagor has removed or disposed of the mortgaged goods, or intends to remove or dispose of them, without the credit provider ' s permission; or

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

89A(4)    
Subsection (2) is an offence of strict liability.

Note:

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