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 3 - Postponement of enforcement proceedings  

94   Postponement of exercise of rights  
Postponement request

94(1)    

A debtor, mortgagor or guarantor who has been given a default notice under section 88 or a demand for payment under section 90 may, at any time before the end of the period specified in the notice or demand, request (a postponement request ), orally or in writing, that the credit provider 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.

Credit provider ' s notice about postponement

94(2)    

If the debtor, mortgagor or guarantor gives the postponement request, the credit provider must, within 21 days after the day of receiving the request, give the person a written notice:

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

(b) if the credit provider 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

94(3)    

If the debtor, mortgagor or guarantor gives the postponement request, the credit provider must not begin enforcement proceedings unless:

(a) the credit provider has given the debtor, mortgagor or guarantor a notice under subsection (2) in response to the postponement request; and

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

Criminal penalty: 50 penalty units.

Note:

The credit provider must allow the debtor or mortgagor at least 30 days from the date of the default notice to remedy the default - see section 88. 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.

94(4)    

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.

94(5)    
Subsections (2) and (3) are offences of strict liability.

Note:

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