National Consumer Credit Protection Act 2009

SCHEDULE 1 - NATIONAL CREDIT CODE  

Note:

See section 3 of the National Credit Act.

PART 6 - PENALTIES FOR DEFAULTS OF CREDIT PROVIDERS AND LESSORS  

Division 1 - Penalties for breach of key disclosure and other requirements  

113   Penalty may be imposed for contravention of key requirement  
Declaration as to key requirement

113(1)    

The court must, on an application being made, by order declare whether or not the credit provider or lessor has contravened a key requirement in connection with the credit contract or contracts concerned, or consumer lease or leases concerned.

Penalty orders

113(2)    

The court may make an order, in accordance with this Division, requiring the credit provider or lessor to pay an amount as a penalty, if it is of the opinion that the credit provider or lessor has contravened a key requirement.

Prudential standing

113(3)    

The court, in considering the imposition of a penalty, must have regard primarily to the prudential standing of:

(a)    any credit provider or lessor concerned; or

(b)    any subsidiary of the credit provider or lessor (within the meaning of the Corporations Act 2001 );

Other matters to be considered

113(4)    
The court, in considering the imposition of a penalty, must have regard to the following:

(a)    

in the case of a credit contract - the conduct of the credit provider and debtor before and after the credit contract was entered into;

(aa)    

in the case of a consumer lease - the conduct of the lessor and lessee before and after the consumer lease was entered into;

(b)    whether the contravention was deliberate or otherwise;

(c)    

the loss or other detriment (if any) suffered by the debtor or lessee as a result of the contravention;

(d)    

when the credit provider first became aware, or ought reasonably to have become aware, of the contravention;

(e)    

any systems or procedures of the credit provider or lessor to prevent or identify contraventions;

(f)    

whether the contravention could have been prevented by the credit provider or lessor;

(g)    

any action taken by the credit provider or lessor to remedy the contravention or compensate the debtor or lessee or to prevent further contraventions;

(h)    the time taken to make the application and the nature of the application;

(i)    any other matter the court considers relevant.

Related contraventions

113(5)    
The court must, for the purposes of determining an application for an order under this Division or the amount of a penalty, treat a contravention of a key requirement that occurs merely because of another contravention of a key requirement as being a contravention of the same kind. If a provision referred to in section 111 contains several requirements, the court must treat contraventions of more than one of those requirements as a single contravention of the one key requirement for the purposes of determining the amount of a penalty.

Suppression of publication of application

113(6)    
The court may, if it thinks it appropriate in the circumstances, order that particulars of or any matters relating to an application for an order under this Division not be published.