Consumer Credit (Victoria) and Other Acts Amendment Act 2008
Consumer Credit (Victoria) and Other Acts
Amendment Act 2008
No. 6 of 2008
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY 1
1 Purposes 1
2 Commencement 2
PART 2—CONSUMER CREDIT (VICTORIA) ACT 1995 4
3 Director may bring proceedings in a court instead of Tribunal 4
4 New section 9A inserted 5
9A Definitions 5
5 Exemptions 7
6 New sections 12A and 12B inserted 8
12A Registered credit provider to be member of approved
EDR scheme 8
12B Eligibility for registration 8
7 Applications for registration 10
8 Repeal of section 13(4) 12
9 New sections 14A, 14B, 14C and 14D inserted 12
14A Change to information provided in an application for
registration 12
14B Consideration of application 13
14C Referral of applications to Director 14
14D Referral of applications to Chief Commissioner 15
10 Registration 15
11 New section 19 substituted 16
19 Register of Credit Providers 16
12 Inspection of the Register 18
13 Notice of changes of information on Register 18
14 Credit provider to affirm eligibility 19
15 New section 24A inserted 19
24A Authority may inquire into statements 19
16 New sections 27A, 27B and 27C inserted 21
27A Automatic cancellation of registration 21
27B Permission to be registered or to continue to be
registered 23
27C Conditions on permission 24
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Section Page
17 Inquiry by Tribunal 25
18 Section 35 substituted 25
35 Death or disability of registered credit provider 25
19 New section 35A inserted 27
35A Application for review 27
20 Penalty units 28
21 References to Registrar 28
22 Statute law revision 28
23 Repeal of Part 7 28
24 New sections 51 to 55 inserted 28
51 Current registered credit providers 28
52 Notice to Authority 29
53 Applications made but not determined 29
54 Preservation of information in the Register of Credit
Providers 30
55 Applications for review by the Tribunal 30
25 Repeal of Schedule 1 30
PART 3—CREDIT (ADMINISTRATION) ACT 1984 31
26 New sections 13 and 14 inserted 31
13 Powers of the Director in relation to proceedings on
behalf of consumers 31
14 Proceedings and costs 32
PART 4—FAIR TRADING ACT 1999 35
27 New Part 5A inserted 35
PART 5A—FAIR REPORTING 35
93A Definitions 35
93B Correction of errors 35
93C Consumer may apply to court where agent fails to
correct information etc. 37
93D Powers of Court on application 37
PART 5—RESIDENTIAL TENANCIES ACT 1997 39
28 Act applies to rent-to-buy contracts 39
PART 6—SALE OF LAND ACT 1962 40
29 Definitions 40
30 Repeal of sections 3 to 7 40
31 Section 14 substituted 40
14 Certain agreements void 40
32 Section 29 substituted 41
29 Effect on terms contract deposit provisions 41
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Section Page
33 New Division 4 of Part I inserted 41
Division 4—Terms contracts 41
Subdivision 1—Introductory 41
29A What is a terms contract? 41
Subdivision 2—Certain terms contracts prohibited 42
29B Which terms contracts are prohibited? 42
29C Exceptions to prohibition 43
29D When is a person presently entitled to become the
registered proprietor? 43
29E Mistakes or mis-statements as to description 44
29F Purchaser may avoid prohibited terms contract 45
29G Certain provisions of terms contract void 46
Subdivision 3—Transfer and mortgage back 46
29H Purchaser may call for a transfer on giving a mortgage
back 46
29I What must the mortgage provide 47
29J Failure of vendor to comply with requirement 48
29K Subdivision to apply despite Trustee Act 1958 and
other Acts 48
29L Arbitrator may determine questions 48
Subdivision 4—Mortgages and terms contracts 49
29M Restrictions on sale of land 49
29N Purchaser may avoid contract 49
29O Exception if mortgage to be discharged 50
29P Land subject to a terms contract not to be mortgaged
by vendor 50
29Q Vendor may require purchaser to execute mortgage 51
29R Vendor to advance amount for duty payable 51
29S Contravention of mortgage requirements 52
29T Failure by purchaser to comply with notice 53
29U Arbitrator may determine questions 54
29V Constructive notice 54
Subdivision 5—Restrictions on legal practitioners 55
29W Legal practitioner not to act for both vendor and
purchaser under a terms contract 55
34 Repeal of section 33 56
35 Statute law revision 56
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Section Page
PART 7—AMENDMENTS AND REPEALS 57
36 Amendment of Business Licensing Authority Act 1998 57
37 Amendment of Subdivision Act 1988 57
38 Amendment of Transfer of Land Act 1958 58
39 Repeal of Credit Reporting Act 1978 59
40 Repeal of Amending Act 59
═══════════════
ENDNOTES 60
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Victoria
Consumer Credit (Victoria) and Other
Acts Amendment Act 2008†
No. 6 of 2008
[Assented to 18 March 2008]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1 Purposes
The main purposes of this Act are—
(a) to amend the Consumer Credit (Victoria)
Act 1995—
(i) in relation to the registration of credit
providers; and
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Part 1—Preliminary
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 2
(ii) to allow certain proceedings under the
Consumer Credit (Victoria) Code to
be brought in a court rather than VCAT
if the Director of Consumer Affairs
Victoria so determines; and
(b) to amend the Credit (Administration) Act
1984 to empower the Director of Consumer
Affairs Victoria to bring proceedings on
behalf of consumers under the Consumer
Credit (Victoria) Code or Division 5 of
Part 4A of the Consumer Credit (Victoria)
Act 1995; and
(c) to amend the Fair Trading Act 1999 to
re-enact certain provisions of the Credit
Reporting Act 1978 relating to the
correction of errors in credit records; and
(d) to amend the Residential Tenancies Act
1997 to provide that certain agreements are
to be tenancy agreements even if the rental
term exceeds 5 years if the tenant also has a
right or option to purchase the rented
premises; and
(e) to amend the Sale of Land Act 1962 to
re-enact with amendments the provisions
relating to terms contracts; and
(f) to repeal the Credit Reporting Act 1978.
2 Commencement
(1) This Act (except for sections 4 to 24 and Parts 5
and 6) comes into operation on the day after the
day on which it receives Royal Assent.
(2) Subject to subsection (3), sections 4 to 24 and
Parts 5 and 6 come into operation on a day or days
to be proclaimed.
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(3) If a provision referred to in subsection (2) does
not come into operation before 1 July 2009, it
comes into operation on that day.
__________________
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Part 2—Consumer Credit (Victoria) Act 1995
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No. 6 of 2008
s. 3
PART 2—CONSUMER CREDIT (VICTORIA) ACT 1995
3 Director may bring proceedings in a court instead of
Tribunal
(1) In section 8(1)(a) of the Consumer Credit
(Victoria) Act 1995 before "in the case of" insert
"except in relation to proceedings in respect of
which a determination is made under
subsection (1A),".
See:
Act No.
41/1995.
Reprint No. 2
as at
24 February
2000
and
amending
Act Nos
11/2001,
44/2001,
10/2004,
10/2005 and
17/2007.
LawToday:
www.
legislation.
vic.gov.au
(2) After section 8(1)(a) of the Consumer Credit
(Victoria) Act 1995 insert—
"(ab) in the case of proceedings in respect of
which a determination is made under
subsection (1A), only a court; or".
(3) After section 8(1) of the Consumer Credit
(Victoria) Act 1995 insert—
"(1A) The Director may determine to bring
proceedings (other than proceedings on
behalf of any other person) that the Director
is empowered to bring under a provision of
the Code referred to in subsection (1)(a) in a
court instead of the Tribunal if the Director
considers that—
(a) it is in the public interest to do so; and
(b) given the nature and circumstances of
the case, it would be more
appropriately dealt with by a court.
(1B) Subsection (1A) applies only to proceedings
commenced after the commencement of
section 3 of the Consumer Credit
(Victoria) and Other Acts Amendment
Act 2008.".
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s. 4
4 New section 9A inserted
In Part 4 of the Consumer Credit (Victoria) Act
1995 before section 10 insert—
"9A Definitions
(1) In this Part—
approved EDR scheme means—
(a) an external dispute resolution
scheme that is approved by the
Australian Securities and
Investments Commission in
accordance with section
912A(2)(b) of the Corporations
Act; or
(b) a dispute resolution scheme
prescribed by the regulations to be
an approved EDR scheme for
credit providers;
associate, in relation to a person, means—
(a) a spouse or domestic partner of
the person, other than a spouse or
domestic partner—
(i) who is not, and has never
been, involved in the
person's business of
providing credit; or
(ii) who will not be involved in
the person's proposed
business of providing credit;
or
(b) if the person is a body corporate, a
director of the body corporate;
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disqualifying offence means an offence
involving fraud, dishonesty, violence or
drug trafficking punishable on
conviction by—
(a) in the case of a natural person,
imprisonment for 3 months or
more (whether or not in addition
to a fine); or
(b) in the case of a body corporate, a
fine of 100 penalty units or more;
domestic partner of a person means an adult
person to whom the person is not
married but with whom the person is in
a relationship as a couple where one or
each of them provides personal or
financial commitment and support of a
domestic nature for the material benefit
of the other, irrespective of their
genders and whether or not they are
living under the same roof, but does not
include a person who provides
domestic support and personal care to
the person—
(a) for fee or reward; or
(b) on behalf of another person or an
organisation (including a
government or government
agency, a body corporate or a
charitable or benevolent
organisation);
Register means the Register of Credit
Providers under section 19;
relevant business means the business of—
(a) providing credit; or
(b) finance broking; or
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s. 5
(c) providing financial services within
the meaning of the Corporations
Act;
relevant licence or registration means—
(a) a licence or registration as a credit
provider under the law of another
State or of a Territory; or
(b) a licence or registration as a
finance broker under the law of
any Australian jurisdiction; or
(c) an Australian financial services
licence under the Corporations
Act;
spouse of a person means a person to whom
the person is married.
(2) For the purposes of the definition of domestic
partner in subsection (1)—
(a) in determining whether persons are domestic
partners of each other, all the circumstances
of their relationship are to be taken into
account, including any one or more of the
matters referred to in section 275(2) of the
Property Law Act 1958 as may be relevant
in a particular case;
(b) a person is not a domestic partner of another
person only because they are co-tenants.".
5 Exemptions
(1) In section 12(1)(c) of the Consumer Credit
(Victoria) Act 1995 for "Life Insurance Act
1945" substitute "Life Insurance Act 1995".
(2) Section 12(1)(f) of the Consumer Credit
(Victoria) Act 1995 is repealed.
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s. 6
6 New sections 12A and 12B inserted
After section 12 of the Consumer Credit
(Victoria) Act 1995 insert—
"12A Registered credit provider to be member
of approved EDR scheme
A registered credit provider must not carry
on business as a credit provider unless the
registered credit provider is a member of an
approved EDR scheme.
Penalty: 120 penalty units, in the case of a
natural person;
600 penalty units, in the case of a
body corporate.
12B Eligibility for registration
A person is not eligible to be registered as a
credit provider under this Part—
(a) if the person is a represented person
within the meaning of the
Guardianship and Administration
Act 1986; or
(b) if the person is a body corporate, if a
director of the body corporate is a
represented person within the meaning
of the Guardianship and
Administration Act 1986; or
(c) if the person is an insolvent under
administration or an externally-
administered body corporate; or
(d) if the person is a body corporate, if a
director of the body corporate is an
insolvent under administration; or
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(e) if the person has within the preceding
5 years in Australia or elsewhere, been
convicted or found guilty of a
disqualifying offence; or
(f) if an associate of the person or, if the
person is a body corporate, an associate
of a director of the body corporate has,
within the preceding 5 years in
Australia or elsewhere, been convicted
or found guilty of a disqualifying
offence; or
(g) if—
(i) a body corporate has, within the
preceding 5 years in Australia or
elsewhere, been convicted or
found guilty of a disqualifying
offence; and
(ii) the person was a director of the
body corporate at the time the
disqualifying offence was
committed; or
(h) if the person carries on or has carried
on a relevant business, or holds or has
held a relevant licence or registration
and—
(i) the relevant licence or registration
is suspended; or
(ii) the relevant licence or registration
has been cancelled at any time in
the preceding 5 years; or
(iii) the person is disqualified from
carrying on the relevant business
or has been so disqualified at any
time in the preceding 5 years; or
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(i) if an associate of the person or, if the
person is a body corporate, an associate
of a director of the body corporate
carries on or has carried on a relevant
business, or holds or has held a relevant
licence or registration and—
(i) the relevant licence or registration
is suspended; or
(ii) the relevant licence or registration
has been cancelled at any time in
the preceding 5 years; or
(iii) the associate is disqualified from
carrying on the relevant business
or has been so disqualified at any
time in the preceding 5 years.".
7 Applications for registration
(1) In section 13(1) of the Consumer Credit
(Victoria) Act 1995 for "Registrar" (wherever
occurring) substitute "Authority".
(2) After section 13(2)(f) of the Consumer Credit
(Victoria) Act 1995 insert—
"(fa) the name and contact information of the
approved EDR scheme of which the
applicant is a member;
(fb) a description of the types of credit products
the applicant proposes to offer or provide;
(fc) whether the applicant employs, or proposes
to employ, less than 20 employees or 20 or
more employees;
(fd) whether the applicant is, or proposes to be, a
linked credit provider;
(fe) each other State or Territory where the
applicant carries on the business of providing
credit;".
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s. 7
(3) After section 13(2) of the Consumer Credit
(Victoria) Act 1995 insert—
"(2A) If the applicant is a natural person, the
applicant must certify on the application—
(a) that the applicant is not ineligible to be
registered on any ground set out in
section 12B(a), 12B(c), 12B(e), 12B(g)
or 12B(h); and
(b) that, after making relevant inquiries, to
the applicant's knowledge, the applicant
is not ineligible to be registered on any
ground set out in section 12B(f)
or 12B(i); and
(c) that the applicant is of or over the age
of 18 years.
(2B) If the applicant is a body corporate, the
application must be accompanied by a
statement by one of the directors
certifying—
(a) that the body corporate is not ineligible
to be registered on any ground set out
in section 12B(b), 12B(c), 12B(d),
12B(e) or 12B(h); and
(b) that, after making relevant inquiries of
each of the directors, to the knowledge
of the director making the statement,
the body corporate is not ineligible to
be registered on any ground set out in
section 12B(f) or 12B(i).
(2C) If the applicant is a body corporate, the
application must be accompanied by a
statement by the director making the
application on behalf of the body corporate
that certifies—
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s. 8
(a) that he or she has authority to make the
application on behalf of the body
corporate; and
(b) that the particulars contained in the
application are true and correct.
(2D) An application under this section must be
accompanied by evidence as to the identity
of—
(a) the applicant; or
(b) if the applicant is a body corporate, the
director making the application on
behalf of the body corporate—
by means of a birth certificate, passport
(if the passport is current or has been expired
for not more than 2 years), driver licence or
any other document in one of the prescribed
categories.".
8 Repeal of section 13(4)
Section 13(4) of the Consumer Credit (Victoria)
Act 1995 is repealed.
9 New sections 14A, 14B, 14C and 14D inserted
After section 14 of the Consumer Credit
(Victoria) Act 1995 insert—
"14A Change to information provided in an
application for registration
(1) An applicant for registration must—
(a) give the Authority notice of any
material change during the relevant
period to the information provided to
the Authority by the applicant in
support of the application; and
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s. 9
(b) provide the notice referred to in
paragraph (a) within 7 days after
becoming aware of the change.
Penalty: 60 penalty units.
(2) In this section—
material change includes a change resulting
in an applicant becoming ineligible to
apply for registration;
relevant period means the period between
the making of an application for
registration and the determination of
the application by the Authority.
14B Consideration of application
(1) In considering an application for registration,
the Authority may—
(a) conduct any inquiries into matters
relevant to registration that the
Authority thinks fit;
(b) require an applicant to provide any
further information relating to matters
relevant to registration that the
Authority thinks fit in the manner
required by the Authority;
(c) seek advice and information on the
application from any other person or
body that the Authority thinks fit.
(2) The Authority may engage or appoint any
person to assist it in considering an
application.
(3) The Authority may refuse to register an
applicant if the applicant does not provide
the further information required under
subsection (1)(b) within a reasonable time of
the requirement being made.
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(4) The Authority may request the applicant to
provide any consent to disclosure of
information that the Authority requires to
perform, or have performed, a check on the
applicant or on any information included in
the applicant's application.
(5) The Authority may refuse to consider an
application for registration if the applicant
fails to comply with a request under
subsection (4) within 14 days after the
request is made.
(6) The Authority is not required to conduct an
oral hearing to determine whether to register
an applicant or refuse to register an
applicant.
(7) In this section, in the case of an applicant
that is a body corporate, a reference to an
applicant includes a reference to a director of
the body corporate.
14C Referral of applications to Director
(1) Before making a decision on an application
for registration, the Authority may refer the
application, or any part of the application, to
the Director.
(2) If the Authority refers an application, or any
part of an application, to the Director under
this section, the Director—
(a) must make any inquiries in relation to
the application or part of the application
that the Director considers to be
appropriate to enable the proper
consideration of the application; and
(b) must give the Authority a report on the
results of those inquiries.
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s. 10
(3) The Director may include in a report any
recommendations relating to the application
that the Director considers appropriate.
14D Referral of applications to Chief
Commissioner
(1) Before making a decision on an application
for registration, the Authority may give any
details of the application that the Authority
considers relevant to the Chief
Commissioner.
(2) The Chief Commissioner, on receiving
details of the application, must make any
inquiries in relation to the application that
the Chief Commissioner considers
appropriate.
(3) The Chief Commissioner, after receiving the
results of the inquiries, must report to the
Authority.
(4) A report may include recommendations.".
10 Registration
(1) For section 15(1) of the Consumer Credit
(Victoria) Act 1995 substitute—
"(1) The Authority must register an applicant as a
credit provider if it is satisfied—
(a) on the basis of the information provided
by the applicant to the Authority or
otherwise obtained by the Authority,
that the applicant is not ineligible to be
registered on any ground set out in
section 12B; and
(b) that the applicant complies with the
requirements set out in section 13(1).".
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(2) In section 15(3) of the Consumer Credit
(Victoria) Act 1995 for "registering" substitute
"the registration of".
(3) After section 15(3) of the Consumer Credit
(Victoria) Act 1995 insert—
"(4) If the Authority decides not to register an
applicant, the Authority must notify the
applicant in writing of the decision within
14 days after that decision is made.".
11 New section 19 substituted
For section 19 of the Consumer Credit
(Victoria) Act 1995 substitute—
"19 Register of Credit Providers
(1) The Authority must keep a register to be
known as the Register of Credit Providers.
(2) The purposes of the Register are—
(a) to enable members of the public to
access information about credit
providers;
(b) to record details of the approved EDR
scheme of which each credit provider is
a member;
(c) to enable the Director and the
Authority—
(i) to contact credit providers to
inform them of changes to the
requirements of the Credit Acts;
(ii) to monitor compliance by credit
providers with the Credit Acts;
(iii) to conduct education campaigns
for credit providers and consumers
in relation to the operation of the
Credit Acts.
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s. 11
(3) The Register must be kept in a form, and
made available in whole or in part in a form,
approved by the Authority.
(4) The Register must contain for each credit
provider—
(a) the name and contact information,
including any Internet or email
addresses maintained for the operation
of the business;
(b) if the credit provider is a body
corporate, the name of each director of
the body corporate;
(c) all names under which the credit
provider carries on the business of
providing credit;
(d) the Australian Business Number (ABN)
(if any) issued to the credit provider;
(e) the name and contact information of the
approved EDR scheme of which the
credit provider is a member;
(f) details of any orders relating to the
credit provider made by the Tribunal
under this Act of which the Registrar
has notice;
(g) details of any undertakings given to the
Director by the credit provider under
this Act or the Fair Trading Act 1999
of which the Registrar has notice;
(h) the date of grant and date of any
surrender, cancellation or suspension of
the credit provider's registration;
(i) any other information prescribed in the
regulations.
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(5) Subject to the Public Records Act 1973, the
Registrar may remove information from the
Register if—
(a) the information has been on the
Register for at least 12 years; and
(b) in the opinion of the Registrar, it is no
longer necessary for the information to
remain on the Register.
(6) A certificate under the hand of the Registrar
certifying as to any matter on the Register is
to be received in all courts as evidence of the
matter certified.
(7) In this section—
Credit Acts means the Credit Act 1984, the
Consumer Credit (Victoria) Act 1995
and the Consumer Credit (Victoria)
Code.".
12 Inspection of the Register
In section 20 of the Consumer Credit (Victoria)
Act 1995 after "A person" insert ", on payment of
the prescribed fee (if any)".
13 Notice of changes of information on Register
(1) In section 21(1) of the Consumer Credit
(Victoria) Act 1995—
(a) for "prescribed change" substitute "material
change"; and
(b) for "14 days" substitute "7 days".
(2) In section 21(2) of the Consumer Credit
(Victoria) Act 1995 for "prescribed change"
substitute "material change".
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(3) After section 21(2) of the Consumer Credit
(Victoria) Act 1995 insert—
"(3) If the Registrar receives notice of any change
to a credit provider's membership of an
approved EDR scheme, the Registrar must
notify the Director of the change.
(4) In this section—
material change includes—
(a) a change to any information about
the credit provider contained in
the Register, including
information about membership of
an approved EDR scheme; and
(b) a prescribed change.".
14 Credit provider to affirm eligibility
(1) After section 24(2A) of the Consumer Credit
(Victoria) Act 1995 insert—
"(2B) A statement under this section must affirm
that the registered credit provider is not
ineligible for registration on any ground set
out in section 12B.".
(2) In section 24(4) of the Consumer Credit
(Victoria) Act 1995 for "Registrar" (wherever
occurring) substitute "Authority".
15 New section 24A inserted
After section 24 of the Consumer Credit
(Victoria) Act 1995 insert—
"24A Authority may inquire into statements
(1) The Authority may in relation to a statement
lodged by a credit provider under
section 24—
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(a) conduct any inquiries into matters
relevant to registration that the
Authority thinks fit;
(b) require a credit provider to provide any
further information relating to matters
relevant to registration that the
Authority thinks fit in the manner
required by the Authority;
(c) seek advice and information on the
application from any other person or
body that the Authority thinks fit.
(2) In making inquiries under this section, the
Authority may request the credit provider to
provide any consent to disclosure of the
information that the Authority requires to
check on the credit provider or on any
information included in the credit provider's
statement.
(3) If a credit provider fails to provide within a
reasonable time—
(a) further information required under
subsection (1)(b); or
(b) consent to the disclosure of the
information in accordance with
subsection (2)—
the Authority must give notice in writing to
the credit provider to the effect that unless
the credit provider provides the information
or consent within 14 days, or such longer
period as the Authority determines, after the
notice is given, the credit provider's
registration will be cancelled.
(4) If the credit provider fails to provide the
information or consent within the time
specified in a notice under subsection (3), the
20
-- 24 of 64 --
Part 2—Consumer Credit (Victoria) Act 1995
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 16
registration of the credit provider is
automatically cancelled.
(5) In this section, in the case of a credit
provider that is a body corporate, a reference
to a credit provider includes a reference to a
director of the body corporate.".
16 New sections 27A, 27B and 27C inserted
After section 27 of the Consumer Credit
(Victoria) Act 1995 insert—
"27A Automatic cancellation of registration
(1) A person's registration under this Part is
automatically cancelled—
(a) if the person becomes a represented
person within the meaning of the
Guardianship and Administration
Act 1986; or
(b) if the person is a body corporate, if a
director of the body corporate becomes
a represented person within the
meaning of the Guardianship and
Administration Act 1986; or
(c) if the person becomes an insolvent
under administration or an externally-
administered body corporate.
(2) A person's registration under this Part is
automatically cancelled 30 days after—
(a) subject to subsection (3), the person or
an associate of the person, or if the
person is a body corporate, an associate
of a director of the body corporate, is
convicted or found guilty of a
disqualifying offence; or
21
-- 25 of 64 --
Part 2—Consumer Credit (Victoria) Act 1995
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 16
(b) subject to subsection (3), the person or
an associate of the person, or if the
person is a body corporate, an associate
of a director of the body corporate,
carries on a relevant business, or holds
a relevant licence or registration and—
(i) the relevant licence or registration
is suspended or cancelled; or
(ii) the person or associate is
disqualified from carrying on the
business; or
(c) an associate of the person or, if the
person is a body corporate, an associate
of a director of the body corporate
becomes an insolvent under
administration or an externally
administered body corporate; or
(d) the person is notified in writing by the
Authority that an associate of the
person or, if the person is a body
corporate, an associate of a director of
the body corporate would, if the
associate or director were to apply for
registration under this Part, be
ineligible to be so registered.
(3) If the person is a body corporate, the person's
registration under this Part is automatically
cancelled if—
(a) a director is convicted or found guilty
of a disqualifying offence; or
(b) a director has a relevant licence or
registration suspended or cancelled—
and the director is still a director of the body
corporate 30 days after the conviction,
finding of guilt, suspension or cancellation.
22
-- 26 of 64 --
Part 2—Consumer Credit (Victoria) Act 1995
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 16
(4) For the purposes of subsections (2)(a) and
(3)(a), a conviction or finding of guilt is to
be taken to take effect at the conclusion of
the proceedings, whether on appeal or
otherwise, or at the end of any appeal period,
whichever is the later.
(5) If a person whose registration would
otherwise be cancelled under subsection (2)
or (3) applies for permission under section
27B within the 30 day period referred to in
subsection (2) or (3), the person's registration
is only automatically cancelled if the
application is withdrawn or refused by the
Authority.
27B Permission to be registered or to continue
to be registered
(1) A person who would be otherwise ineligible
to be registered because of sections 12B(c)
to 12B(e) may apply to the Authority for
permission to be registered.
(2) A person whose registration would otherwise
be cancelled under section 27A(2) or 27A(3)
may apply to the Authority for permission to
continue to be registered.
(3) An application for permission must be—
(a) in a form approved by the Authority;
and
(b) accompanied by the prescribed fee
(if any).
(4) The Authority may give its permission if it is
satisfied that it is not contrary to the public
interest to do so.
23
-- 27 of 64 --
Part 2—Consumer Credit (Victoria) Act 1995
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 16
(5) In considering an application under this
section, the Authority may—
(a) conduct any inquiries into matters
relevant to registration that the
Authority thinks fit; and
(b) require the applicant to provide any
further information relating to matters
relevant to registration that the
Authority thinks fit, in the manner
required by the Authority; and
(c) seek advice and information on the
application from any other person or
body that the Authority thinks fit.
(6) The Authority may refuse to give permission
if the applicant does not provide the further
information required within 14 days of the
requirement being made.
(7) The Authority is not required to conduct an
oral hearing to determine whether or not to
give permission.
27C Conditions on permission
(1) In giving permission under section 27B, the
Authority may impose any conditions it
considers appropriate to ensure the ongoing
protection of the public interest.
(2) The Authority may at any time impose
conditions in respect of the permission or
vary or revoke any conditions previously
imposed.
(3) A person to whom permission has been
given must comply with any conditions
imposed in respect of the permission.
Penalty: 100 penalty units.".
24
-- 28 of 64 --
Part 2—Consumer Credit (Victoria) Act 1995
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 17
17 Inquiry by Tribunal
(1) Sections 30(3)(g), 30(3)(h) and 30(3)(j) of the
Consumer Credit (Victoria) Act 1995 are
repealed.
(2) At the end of section 30(3)(i) for "Act; or"
substitute "Act.".
(3) For section 30(5) of the Consumer Credit
(Victoria) Act 1995 substitute—
"(5) If the registered credit provider is the holder
of an Australian financial services licence
issued under Part 7.6 of the Corporations Act
or is registered, licensed or otherwise
authorised to operate under any prescribed
law providing for the prudential supervision
of the credit provider, the Tribunal must,
before holding an inquiry, consult with and
send a copy of the application under
section 28 to the Australian Securities and
Investments Commission or, as the case
requires, to the body responsible under the
prescribed law for the registration, licensing
or authorisation of the credit provider.".
18 Section 35 substituted
For section 35 of the Consumer Credit
(Victoria) Act 1995 substitute—
"35 Death or disability of registered credit
provider
(1) The following persons may carry on the
business of providing credit of a person who
was registered under this Part for 30 days
after the person ceases to be registered—
(a) if the person dies, the executor named
in the person's will or the administrator
of the person's estate or any person who
intends applying for letters of
25
-- 29 of 64 --
Part 2—Consumer Credit (Victoria) Act 1995
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 18
administration in relation to the
person's estate;
(b) if the person becomes an insolvent
under administration, the assignee,
trustee or receiver of the person;
(c) if the person becomes a represented
person within the meaning of the
Guardianship and Administration
Act 1986, the administrator of the
estate of the person or any person
nominated by the administrator;
(d) if the person becomes an externally-
administered body corporate, the
liquidator, official manager, receiver,
receiver and manager or other external
administrator.
(2) If a person authorised to carry on a business
applies to the Authority within the 30 day
period for permission to carry on the
business for a longer period, the person may
continue to carry on the business until the
Authority makes a decision on the
application.
(3) The Authority may grant an application if it
is satisfied that it is not contrary to the public
interest to do so.
(4) In granting its permission, the Authority may
limit it in any way it thinks appropriate and
may impose any conditions it thinks
appropriate to ensure the ongoing protection
of the public interest.
(5) The Authority may at any time withdraw any
permission it has granted under this section
or limit, or impose, revoke or vary conditions
on, any such permission.
26
-- 30 of 64 --
Part 2—Consumer Credit (Victoria) Act 1995
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 19
(6) A person who has been granted permission
under this section must comply with any
limitation or condition that applies to the
permission.
Penalty: 60 penalty units.
(7) Subject to any limitation or condition
imposed under subsection (4), a person who
carries on a business of providing credit
under this section is deemed, for the
purposes of this Act, to be a registered credit
provider on the same terms and conditions as
applied to the person who has ceased to be
registered.".
19 New section 35A inserted
After section 35 of the Consumer Credit
(Victoria) Act 1995 insert—
"35A Application for review
(1) A person whose interests are affected by a
decision of the Authority under this Part may
apply to the Tribunal for a review of the
decision.
(2) An application for review must be made
within 28 days after the later of—
(a) the day on which the decision is made;
or
(b) if, under the Victorian Civil and
Administrative Tribunal Act 1998,
the person requests a statement of
reasons for the decision, the day on
which the statement of reasons is given
to the person or the person is informed
under section 46(5) of that Act that a
statement of reasons will not be
given.".
27
-- 31 of 64 --
Part 2—Consumer Credit (Victoria) Act 1995
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 20
20 Penalty units
(1) In sections 14, 26(5) and 36 of the Consumer
Credit (Victoria) Act 1995 for "50 penalty units"
substitute "60 penalty units".
(2) In section 18 of the Consumer Credit (Victoria)
Act 1995 for "10 penalty units" substitute
"60 penalty units".
(3) In section 31A of the Consumer Credit
(Victoria) Act 1995 for "25 penalty units"
substitute "60 penalty units".
21 References to Registrar
In sections 23 and 27 of the Consumer Credit
(Victoria) Act 1995 for "Registrar" (wherever
occurring) substitute "Authority".
22 Statute law revision
Section 45(2) of the Consumer Credit (Victoria)
Act 1995 is repealed.
23 Repeal of Part 7
Part 7 of the Consumer Credit (Victoria) Act
1995 is repealed.
24 New sections 51 to 55 inserted
After section 50 of the Consumer Credit
(Victoria) Act 1995 insert—
"51 Current registered credit providers
A person who was registered as a credit
provider immediately before the
commencement of section 6 of the
Consumer Credit (Victoria) and Other
Acts Amendment Act 2008 continues to be
registered as a credit provider under Part 4
after that commencement subject to the
requirements of sections 12B and 27A.
28
-- 32 of 64 --
Part 2—Consumer Credit (Victoria) Act 1995
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 24
52 Notice to Authority
A person who was registered as a credit
provider immediately before the
commencement of section 6 of the
Consumer Credit (Victoria) and Other
Acts Amendment Act 2008 must, within
14 days of that commencement, notify the
Authority in writing of the name and contact
details of the approved EDR scheme of
which the person is a member.
Penalty: 60 penalty units.
53 Applications made but not determined
(1) An application under section 13 made but
not determined before the commencement of
section 7 of the Consumer Credit
(Victoria) and Other Acts Amendment
Act 2008 must be determined in accordance
with this Act as in force immediately before
that commencement.
(2) A person to whom section 53(1) applies
must notify the Authority in writing of the
name and contact details of the approved
EDR scheme of which the person is a
member before the application referred to in
that section is determined.
(3) An application under section 35 made but
not determined before the commencement of
section 18 of the Consumer Credit
(Victoria) and Other Acts Amendment
Act 2008, must be determined in accordance
with this Act as in force immediately before
that commencement.
29
-- 33 of 64 --
Part 2—Consumer Credit (Victoria) Act 1995
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 25
54 Preservation of information in the
Register of Credit Providers
Any information contained in the Register of
Credit Providers immediately before the
commencement of section 11 of the
Consumer Credit (Victoria) and Other
Acts Amendment Act 2008 continues to
form part of the Register after that
commencement unless it is removed by the
Registrar in accordance with this Act.
55 Applications for review by the Tribunal
Section 35A applies only to decisions made
by the Authority after the commencement of
section 19 of the Consumer Credit
(Victoria) and Other Acts Amendment
Act 2008.".
25 Repeal of Schedule 1
Schedule 1 to the Consumer Credit (Victoria)
Act 1995 is repealed.
__________________
30
-- 34 of 64 --
Part 3—Credit (Administration) Act 1984
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 26
PART 3—CREDIT (ADMINISTRATION) ACT 1984
26 New sections 13 and 14 inserted
See:
Act No.
10091.
Reprint No. 4
as at
1 September
1999 and
amending
Act Nos
35/2000,
106/2003,
103/2004 and
79/2006.
LawToday:
www.
legislation.
vic.gov.au
After section 12 of the Credit (Administration)
Act 1984 insert—
"13 Powers of the Director in relation to
proceedings on behalf of consumers
(1) The Director may, subject to this section,
institute or continue proceedings on behalf
of, or defend proceedings brought against, a
person or persons in respect of any consumer
credit matter.
(2) The Director must not, under subsection (1),
institute or continue or defend proceedings
unless the Director is satisfied—
(a) that the person or persons have a good
cause of action or a good defence to an
action relating to the consumer credit
matter; and
(b) that the person or each of the persons is
a debtor, mortgagor or guarantor, or a
lessee under a consumer lease, within
the meaning of the Consumer Credit
(Victoria) Code; and
(c) that it is in the public interest to
institute, continue or defend
proceedings on behalf of the person or
persons.
(3) The Director must not, under subsection (1),
institute, continue or defend proceedings on
behalf of a person or persons unless—
(a) the person has or the persons have
given consent in writing; or
31
-- 35 of 64 --
Part 3—Credit (Administration) Act 1984
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 26
(b) in the case of group proceedings or
representative proceedings, the
representative party has given consent.
(4) After consent has been given under
subsection (3), the Director may institute or
continue proceedings or defend proceedings
on behalf of a person or persons even if the
person or any of the persons revokes the
consent.
(5) In this section—
consumer credit matter means any matter in
respect of which proceedings may be
brought under the Consumer Credit
(Victoria) Code or Division 5 of
Part 4A of the Consumer Credit
(Victoria) Act 1995;
proceedings includes group proceedings and
representative proceedings.
14 Proceedings and costs
(1) If the Director institutes, continues or
defends proceedings on behalf of a person
under section 13—
(a) the Director may settle the proceedings
either with or without obtaining
judgment in the proceedings; and
(b) if a judgment is obtained in the
proceedings in favour of the person, the
Director may take such steps as are
necessary to enforce the judgment; and
(c) subject to subsections (2) and (3), an
amount (other than an amount in
respect of costs) recovered by the
Director in respect of the person in the
proceedings is payable to the person;
and
32
-- 36 of 64 --
Part 3—Credit (Administration) Act 1984
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 26
(d) an amount in respect of costs recovered
in the proceedings is payable to the
Director; and
(e) subject to subsection (2), the person is
liable to pay an amount (not being an
amount of costs) awarded against the
person in the proceedings; and
(f) the Director is liable to pay the costs of
or incidental to the proceedings that are
payable by the person.
(2) If the Director institutes, continues or
defends proceedings on behalf of a person
after the person revokes the consent to the
institution, defence or continuation of the
proceedings—
(a) the Director must compensate the
person for—
(i) any loss suffered as the result of
the loss of any settlement offer
made to the person; and
(ii) out-of-pocket expenses incurred
by the person during the
proceedings after the revocation of
consent; and
(b) the Director is liable to pay any amount
awarded against the person in the
proceedings.
(3) If the Director institutes, continues or
defends proceedings on behalf of a person
after the person revokes the consent to the
institution, continuation or defence of the
proceedings, any amount recovered by the
Director in respect of the person in the
proceedings (including any amount for costs)
that exceeds the amount payable to the
person under subsection (2) may be applied
33
-- 37 of 64 --
Part 3—Credit (Administration) Act 1984
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 26
to the payment of the costs of, and incidental
to, the proceedings for which the Director is
liable or that are incurred by the Director in
relation to the proceedings.
(4) If, in proceedings instituted, continued or
defended on behalf of a person under
section 13—
(a) a party to the proceedings files a
counterclaim; or
(b) the person is entitled to file a
counterclaim—
and the counterclaim is not or would not be
related to the proceedings and to the interests
of the person in the dispute, the Director may
apply to the court or the Tribunal hearing the
proceedings for an order that the
counterclaim not be heard in the course of
those proceedings.
(5) If the court or the Tribunal makes an order
under subsection (4), the court or the
Tribunal may make any ancillary or
consequential provisions that it thinks just.".
__________________
34
-- 38 of 64 --
Part 4—Fair Trading Act 1999
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 27
PART 4—FAIR TRADING ACT 1999
27 New Part 5A inserted
After Part 5 of the Fair Trading Act 1999
insert—
See:
Act No.
16/1999.
Reprint No. 3
as at
23 February
2007
and
amending
Act Nos
79/2006 and
17/2007.
LawToday:
www.
legislation.
vic.gov.au
"PART 5A—FAIR REPORTING
93A Definitions
In this Part—
consumer means any person with respect to
whom—
(a) a credit report is made; or
(b) any information is held by a credit
reporting agent;
credit report means any written, oral, or
other communication with respect to
the credit worthiness, credit standing,
or credit capacity of a person but does
not include a report containing
information solely as to transactions or
communications between the person
making the report and the person who
is the subject of the report;
credit reporting agent means a person who
engages in the practice of providing
credit reports to any other person,
whether for profit or reward or on a
regular co-operative basis.
93B Correction of errors
(1) A consumer who disputes the accuracy or
completeness in relation to the consumer of
any information compiled by a credit
reporting agent may request the agent to
correct the information.
35
-- 39 of 64 --
Part 4—Fair Trading Act 1999
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 27
(2) A request under subsection (1) must be by
written notice which must—
(a) include details of the matters in dispute;
and
(b) be served on the agent personally or by
post or by electronic communication.
(3) If a consumer makes a request under
subsection (1), the credit reporting agent
must, within 30 days, inform the consumer—
(a) as to whether or not the agent has made
any amendment or supplement to or
deletion from the information recorded
in relation to that consumer; and
(b) if so, of the full details of the
amendment, supplement or deletion.
(4) If a credit reporting agent amends,
supplements or deletes information, the
agent must give written notice of that fact to
the following persons within 30 days—
(a) all persons who have been supplied
with information with respect to the
consumer within 6 months before the
amendment, supplement or deletion is
made;
(b) any persons to whom the credit
reporting agent has supplied
information and whom the consumer
requires the agent to notify of the
amendment, supplement or deletion.
36
-- 40 of 64 --
Part 4—Fair Trading Act 1999
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 27
93C Consumer may apply to court where
agent fails to correct information etc.
(1) This section applies if a consumer makes a
request under section 93B and—
(a) does not receive any of the information
referred to in section 93B(3) within
30 days after making the request; or
(b) is informed that the credit reporting
agent has not made any amendment or
supplement to or deletion from the
information recorded in relation to the
consumer; or
(c) is not satisfied with any amendment
supplement or deletion of which the
consumer is informed.
(2) The consumer may apply to the Magistrates'
Court for an order requiring the credit
reporting agent to make any or any further
amendment or supplement to or deletion
from information compiled in relation to that
consumer.
(3) A consumer must serve written notice of an
application under subsection (2) on the credit
reporting agent within 7 days after making
the application.
93D Powers of Court on application
(1) On an application under section 93C, the
Court may—
(a) order that all or any persons or any
class or description of persons be
excluded from the court during all or
any of the proceedings and, in case of
disobedience, order the removal from
the court of those persons; or
37
-- 41 of 64 --
Part 4—Fair Trading Act 1999
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 27
(b) by order prohibit the publication of a
report of the proceedings; or
(c) make orders under both paragraphs (a)
and (b).
(2) On hearing an application under section 93C,
the Court may order a credit reporting
agent—
(a) to amend, supplement, or delete any
item of information concerning the
consumer that is in the agent's
possession or under the agent's
control—
(i) which the Court is satisfied is
inaccurate, misleading, or
irrelevant to the purpose for which
the information is kept; or
(ii) which the Court is of the opinion
should be amended,
supplemented, or deleted by
reason of the effluxion of time;
and
(b) to give full details of that amendment,
supplement, or deletion to any person
to whom the credit reporting agent has
provided information with respect to
the consumer and who is specified in
the order.
(3) A credit reporting agent must comply with
an order under this section.
Penalty: 60 penalty units or imprisonment
for 6 months.
__________________".
__________________
38
-- 42 of 64 --
Part 5—Residential Tenancies Act 1997
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 28
PART 5—RESIDENTIAL TENANCIES ACT 1997
28 Act applies to rent-to-buy contracts
See:
Act No.
109/1997.
Reprint No. 4
as at
23 March
2006
and
amending
Act Nos
23/2006,
32/2006,
48/2006,
85/2006 and
17/2007.
LawToday:
www.
legislation.
vic.gov.au
At the end of section 6 of the Residential
Tenancies Act 1997 insert—
"(2) Despite subsection (1), this Act applies to a
fixed term tenancy agreement in respect of
premises whether or not the initial term of
the tenancy agreement exceeds 5 years if—
(a) the tenancy agreement or another
document gives to the tenant a right, or
an option, to purchase the premises;
and
(b) the tenancy agreement is not a tenancy
agreement of a kind referred to in
section 13; and
(c) the tenancy agreement is entered into
after the commencement of section 28
of the Consumer Credit (Victoria)
and Other Acts Amendment Act
2008.".
__________________
39
-- 43 of 64 --
Part 6—Sale of Land Act 1962
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 29
PART 6—SALE OF LAND ACT 1962
29 Definitions
See:
Act No.
6975.
Reprint No. 12
as at
1 February
2004
and
amending
Act Nos
92/1990,
103/2004,
10/2005,
18/2005,
69/2006,
75/2006,
85/2006 and
17/2007.
LawToday:
www.
legislation.
vic.gov.au
(1) In section 2(1) of the Sale of Land Act 1962 for
the definition of terms contract substitute—
"terms contract has the meaning set out in
section 29A;".
(2) Sections 2(3) and 2(4) of the Sale of Land Act
1962 are repealed.
30 Repeal of sections 3 to 7
Sections 3 to 7 of the Sale of Land Act 1962 are
repealed.
31 Section 14 substituted
For section 14 of the Sale of Land Act 1962
substitute—
"14 Certain agreements void
Any agreement under which a person
purports to waive any right the person may
have under this Act to avoid a contract is
void.".
40
-- 44 of 64 --
Part 6—Sale of Land Act 1962
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 32
32 Section 29 substituted
For section 29 of the Sale of Land Act 1962
substitute—
"29 Effect on terms contract deposit
provisions
Nothing in this Division affects the operation
of section 29O.".
33 New Division 4 of Part I inserted
After Division 3 of Part I of the Sale of Land Act
1962 insert—
"Division 4—Terms contracts
Subdivision 1—Introductory
29A What is a terms contract?
(1) For the purposes of this Act a contract is a
terms contract if it is an executory contract
for the sale and purchase of any land under
which the purchaser is—
(a) obliged to make 2 or more payments
(other than a deposit or final payment)
to the vendor after the execution of the
contract and before the purchaser is
entitled to a conveyance or transfer of
the land; or
(b) entitled to possession or occupation of
the land before the purchaser becomes
entitled to a conveyance or transfer of
the land.
41
-- 45 of 64 --
Part 6—Sale of Land Act 1962
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 33
(2) In subsection (1)—
deposit means a payment made to the vendor
or to a person on behalf of the vendor
before the purchaser becomes entitled
to possession or to the receipt of rents
and profits under the contract;
final payment means a payment on the
making of which the purchaser
becomes entitled to a conveyance or
transfer of the land.
Subdivision 2—Certain terms contracts
prohibited
29B Which terms contracts are prohibited?
(1) A person must not sell, under a terms
contract, land that is in an identified folio
under the Transfer of Land Act 1958 or is
not under the operation of that Act unless—
(a) at the date of the making of the
contract, the person has a good safe
holding and marketable title to the land;
and
(b) the person—
(i) holds an estate in fee simple in the
land; or
(ii) is, as mortgagee, entitled to an
estate in fee simple in the land; or
(iii) is, as mortgagor, entitled in fee
simple to the equity of redemption
in the land; or
(iv) is empowered by or under an Act
to deal with an estate in fee simple
in the land.
42
-- 46 of 64 --
Part 6—Sale of Land Act 1962
Consumer Credit (Victoria) and Other Acts Amendment Act 2008
No. 6 of 2008
s. 33
(2) A person must not sell, under a terms
contract, land that is under the Transfer of
Land Act 1958 (other than land in an
identified folio under that Act) unless, at the
date of the making of the contract, the person
is—
(a) the registered proprietor of the land; or
(b) presently entitled to become the
registered proprietor of the land; or
(c) empowered by or under an Act to
execute a registrable transfer of the
land.
29C Exceptions to prohibition
Section 29B does not prevent a person from
selling land under a terms contract if—
(a) the person has first obtained the consent
of an arbitrator to enter into the
contract; or
(b) the contract is of a prescribed class and
is entered into in accordance with the
regulations.
29D When is a person presently entitled to
become the registered proprietor?
(1) For the purposes of section 29B(2), a person
is not presently entitled to become the
registered proprietor of land unless the
person is, at the date of making the relevant
contract, entitled to be registered as
proprietor under—
(a) one or more registrable instruments
lodged in the Office of Titles; or
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(b) one or more applications under
Division 2 of Part IV of the Transfer
of Land Act 1958 lodged in the Office
of Titles.
(2) For the purposes of this section, an
instrument or application that is, at the
relevant time, lodged in the Office of Titles
is deemed to be and always to have been
registrable despite any defect in the
instrument or application if—
(a) the instrument is registered or the
application is granted without having
been returned by the Registrar or
withdrawn from the Office of Titles; or
(b) the Registrar certifies in writing that he
or she is satisfied that the defect was
not of a substantial nature and that it
has been remedied.
29E Mistakes or mis-statements as to
description
(1) A failure to comply with section 29B in
respect of land agreed to be sold under a
terms contract because of a mistake or
mis-statement in the contract relating to the
description, measurement or area of the land
agreed to be sold is to be disregarded for the
purposes of this Act unless it is a material
mistake or mis-statement.
(2) Any dispute as to whether a failure is to be
disregarded under subsection (1) may be
determined by an arbitrator.
(3) In this section material mistake or
mis-statement means a mistake or
mis-statement that would entitle the
purchaser to be discharged from the contract
irrespective of the provisions of this Act.
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29F Purchaser may avoid prohibited terms
contract
(1) Except where otherwise expressly provided,
if a terms contract is entered into in
contravention of this Act—
(a) the contract is voidable by the
purchaser at any time before
completion of the contract; and
(b) if the contract is avoided, a person is
entitled to recover any money paid by
that person under that contract.
(2) A terms contract is not voidable by the
purchaser if a court is satisfied that—
(a) the vendor has acted honestly and
reasonably and ought fairly to be
excused for the contravention; and
(b) the purchaser is substantially in as good
a position as if all the relevant
provisions of this Act had been
complied with.
(3) Despite subsection (1), if a terms contract is
entered into in contravention of this Act and
is avoided by the purchaser before the
completion of the contract, the purchaser is
liable to pay an occupation rent for the
period during which the purchaser was—
(a) in actual possession of the land; or
(b) entitled to the receipt of the rents and
profits of the land.
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29G Certain provisions of terms contract void
A provision in a terms contract or in any
other document under which any right,
conferred by this Act on the purchaser under
the terms contract, is excluded, modified or
restricted is void.
Subdivision 3—Transfer and mortgage back
29H Purchaser may call for a transfer on
giving a mortgage back
(1) A purchaser under a terms contract who is
not in default under the contract may require
the vendor to convey or transfer the land to
the purchaser freed and discharged from all
mortgages.
(2) The power under subsection (1) may be
exercised at any time after acceptance of title
and before payment in full of the purchase
money.
(3) A requirement under subsection (1) must be
made by written notice served on the vendor.
(4) The power to require the vendor to convey or
transfer land is conditional on the purchaser
at the same time executing a mortgage or
morgages in favour of the vendor, or any
other person the vendor requires, to secure
the payment of all money that would have
become payable by the purchaser under the
contract if the mortgage had not been
executed.
(5) If land sold under a terms contract is subject
to a mortgage or mortgages and the terms
and conditions of the mortgage or mortgages
are not more onerous than the terms and
conditions under the contract, the vendor
may comply with a requirement under
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subsection (1) by transferring the land
subject to the existing mortgage or
mortgages.
(6) The power of the vendor under subsection
(5) is conditional on the purchaser executing
a mortgage to secure the amount that should
be payable to the vendor having regard to the
liabilities to be assumed by the purchaser
under the existing mortgage or mortgages.
(7) This section applies to a terms contract
entered into before or after the
commencement of Part 6 of the Consumer
Credit (Victoria) and Other Acts
Amendment Act 2008.
29I What must the mortgage provide
(1) The mortgage required under section 29H to
be executed must—
(a) contain all the powers and covenants on
the part of the mortgagor that are usual
in mortgages of land that is similar in
kind to the land that is the subject of the
relevant terms contract; and
(b) fully accord with and provide for
observance of all obligations of the
purchaser under the terms contract; and
(c) be prepared at the cost of the purchaser
and registered under the Transfer of
Land Act 1958.
(2) If, in compliance with a requirement made
by a purchaser under section 29H, a
mortgage is accepted, the mortgage is
deemed to be a proper mortgage and to
comply with subsections (1)(a) and (1)(b).
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29J Failure of vendor to comply with
requirement
(1) If a purchaser serves a notice on a vendor
under section 29H and the vendor, without
lawful excuse, fails to convey or transfer the
land to the purchaser—
(a) the vendor is deemed to have breached
a condition of the terms contract and
the purchaser is entitled to all civil
remedies for that breach; and
(b) the vendor is guilty of an offence and
liable to a penalty of not more than
60 penalty units, in the case of a natural
person or 300 penalty units, in the case
of a body corporate.
(2) In this section a lawful excuse includes
where the vendor disputes in good faith the
purchaser's entitlement to serve the notice.
29K Subdivision to apply despite Trustee Act
1958 and other Acts
This Subdivision applies despite anything in
the Trustee Act 1958 or in any other Act
(other than the Charter of Human Rights and
Responsibilities).
29L Arbitrator may determine questions
Any question as to the sufficiency of any
instrument of transfer, conveyance or
mortgage submitted pursuant to this
Subdivision is, in the absence of agreement
between the parties, to be determined by an
arbitrator.
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Subdivision 4—Mortgages and terms contracts
29M Restrictions on sale of land
If land is subject to a mortgage, the
mortgagor must not sell the land under a
terms contract unless—
(a) the mortgage relates only to that land;
and
(b) the contract expressly states that the
land is subject to a mortgage; and
(c) the contract provides that the
consideration for the sale of the land is
to be satisfied, to the extent of any
mortgage money owing at the date on
which the purchaser is entitled to
possession or receipt of the rents and
profits of the land sold, by the
purchaser assuming as from that date
the obligations of the mortgagor under
the mortgage; and
(d) the contract gives the particulars of the
mortgage referred to in Schedule 1.
29N Purchaser may avoid contract
If a terms contract is entered into in
contravention of section 29M—
(a) the contract is voidable by the
purchaser at any time before the
completion of the contract; and
(b) the vendor is guilty of an offence and
liable to a penalty of not more than
60 penalty units, in the case of a natural
person or 300 penalty units, in the case
of a body corporate.
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29O Exception if mortgage to be discharged
(1) Section 29M does not apply to the sale of
land under a terms contract if the contract
provides that—
(a) any mortgage affecting the land sold is
to be discharged as to that land before
the purchaser becomes or on the
purchaser becoming entitled under the
contract to possession or to the receipt
of the rents and profits; and
(b) the deposit and all other money payable
under the contract (other than any
money payable in excess of the amount
required to discharge the mortgage) are
to be paid to a legal practitioner,
conveyancer or a licensed estate agent
to be applied in or towards discharging
the mortgage.
(2) If a terms contract provides for the matters in
subsection (1) and the mortgage is not
discharged within 90 days of the making of
the contract and the purchaser is not in
default under the contract—
(a) the contract is voidable by the
purchaser at any time before the
mortgage is discharged; and
(b) if the contract is avoided, the purchaser
is entitled to recover all money paid
under the contract.
29P Land subject to a terms contract not to be
mortgaged by vendor
The vendor under a terms contract must not
mortgage the land that is subject to the
contract.
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29Q Vendor may require purchaser to execute
mortgage
(1) A vendor may, by written notice to the
purchaser, require the purchaser—
(a) to take a transfer or conveyance of any
land subject to a terms contract; and
(b) at the vendor's expense, to execute any
mortgage or mortgages in favour of the
vendor and other persons that the
vendor may require.
(2) The obligations of the purchaser under the
mortgage or mortgages referred to in
subsection (1) must be not more onerous to
the purchaser than the obligations of the
purchaser under the terms contract.
29R Vendor to advance amount for duty
payable
(1) Subject to subsection (2), if the purchaser to
whom notice is given under section 29Q
requires, the vendor must advance to the
purchaser an amount equal to the duty
payable by the purchaser under the Duties
Act 2000 on the transfer or conveyance.
(2) The vendor is only required to advance the
amount if the purchaser agrees to the amount
advanced being added to the principal sum
secured by the mortgage or by one of the
mortgages specified by the vendor (as the
case requires).
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29S Contravention of mortgage requirements
(1) If land is mortgaged in contravention of
section 29P, 29Q or 29R—
(a) the terms contract is voidable by the
purchaser at any time before the
completion of the contract; and
(b) the vendor is guilty of an offence and
liable to a penalty of not more than
60 penalty units, in the case of a natural
person or 300 penalty units, in the case
of a body corporate; and
(c) if the mortgagee had actual or
constructive notice of the interest of the
purchaser under the terms contract—
(i) the mortgagee is not entitled to
exercise the mortgagee's remedies
under the mortgage; and
(ii) the mortgagee must execute a
proper discharge of the mortgage
in respect of the land sold and
obtain registration of that
discharge; and
(iii) any amount paid by the mortgagee
to the vendor may be recovered by
the mortgagee from the vendor.
(2) If land under the operation of the Transfer
of Land Act 1958 is mortgaged in
contravention of section 29P, 29Q or 29R—
(a) on the registration of a transfer in
accordance with the section 77 of the
Transfer of Land Act 1958—
(i) the title of the purchaser from the
mortgagee is not impeachable on
the ground that the power of sale
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was exercised in contravention of
this section; and
(ii) for the purposes of Part III of the
Transfer of Land Act 1958, the
purchaser from the mortgagee is
deemed to have dealt with the
registered proprietor of the land;
and
(b) the purchaser under the terms contract
has a remedy in damages against the
mortgagee for exercising the power of
sale if the mortgagee had actual or
constructive notice of the interest of the
purchaser; and
(c) Division 9 of Part IV of the Transfer
of Land Act 1958 applies, except so far
as it is inconsistent with the express
provisions of this section.
29T Failure by purchaser to comply with
notice
(1) If a notice in writing has been served on a
purchaser by a vendor under section 29Q and
the purchaser, without lawful excuse, fails to
comply with the notice—
(a) the purchaser is deemed to have
breached a condition of the contract and
the vendor is entitled to all civil
remedies for that breach; and
(b) the purchaser is guilty of an offence
and liable to a penalty of not more than
60 penalty units, in the case of a natural
person or 300 penalty units, in the case
of a body corporate.
(2) In this section a lawful excuse includes
where the purchaser disputes in good faith
the terms of the mortgage.
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29U Arbitrator may determine questions
Any question as to the sufficiency of any
transfer, conveyance or mortgage submitted
pursuant to this Subdivision must, in the
absence of agreement between the parties, be
determined by an arbitrator.
29V Constructive notice
(1) For the purposes of section 29S, a mortgagee
is deemed not to have constructive notice of
the interest of a purchaser under a terms
contract unless notice of the interest of the
purchaser under the terms contract would
have come to the mortgagee's knowledge if
the mortgagee had made—
(a) a proper inspection of the relevant land;
and
(b) such inquiries as ought reasonably to be
made by the mortgagee of the
mortgagor as to the rights of any person
in possession of the relevant land; and
(c) inquiries of the municipal council of the
municipal district in which the relevant
land is situated as to who is shown on
the rate book as owner of the relevant
land; and
(d) such searches, inquiries and inspections
in the Office of the Registrar of Titles
and Registrar-General as reasonably
ought to have been made by the
mortgagee.
(2) Nothing in subsection (1) limits or affects the
operation of section 42(2)(e) of the Transfer
of Land Act 1958.
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Subdivision 5—Restrictions on legal
practitioners
29W Legal practitioner not to act for both
vendor and purchaser under a terms
contract
(1) A legal practitioner whose principal place of
business is within a 50 kilometre radius of
the intersection of Elizabeth and Bourke
Streets in Melbourne must not act for both
vendor and purchaser under a terms contract.
Penalty: 60 penalty units.
(2) If a legal practitioner is prohibited under
subsection (1) from acting for one party to a
terms contract, a legal practitioner who is in
partnership with that legal practitioner, or
any person employed by that legal
practitioner must not act for that party.
Penalty: 60 penalty units.
(3) If a legal practitioner contravenes this
section, the purchaser for whom the
practitioner has acted may rescind the
contract at any time before the purchaser
becomes entitled to possession or to the
receipt of rents and profits.
(4) Despite subsection (3), the purchaser may
not rescind the contract if the court is
satisfied that—
(a) the legal practitioner has acted honestly
and reasonably and ought fairly to be
excused for the contravention; and
(b) the purchaser is substantially in as good
a position as if all the relevant
provisions of this section had been
complied with.
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(5) Any provision in any contract for the sale of
land or other document under which any
provision of this section is excluded,
modified or rescinded is void.
(6) This section does not apply if any of the
parties to the transaction are related to each
other.
(7) For the purposes of subsection (6) a person is
related to another person if the first-
mentioned person is—
(a) the spouse, domestic partner, brother,
sister, parent, child, grand-parent,
grand-child, uncle, aunt, nephew or
niece; or
(b) the spouse or domestic partner of a
brother, sister, parent, child, grand-
parent, grand-child, uncle, aunt,
nephew or niece—
of the second-mentioned person.".
34 Repeal of section 33
Section 33 of the Sale of Land Act 1962 is
repealed.
35 Statute law revision
In Schedule 1 to the Sale of Land Act 1962, for
"19" substitute "20".
__________________
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PART 7—AMENDMENTS AND REPEALS
36 Amendment of Business Licensing Authority
Act 1998
See:
Act No.
49/1998.
Reprint No. 1
as at
15 April 2004
and
amending
Act Nos
92/2004,
108/2004,
18/2005 and
80/2006.
LawToday:
www.
legislation.
vic.gov.au
After section 6(a)(iv) of the Business Licensing
Authority Act 1998 insert—
"(iva) the Owners Corporations Act 2006;".
37 Amendment of Subdivision Act 1988 See:
Act No.
53/1988.
Reprint No. 5
as at
1 January
1999
and
amending
Act Nos
28/2000,
74/2000,
44/2001,
47/2004,
81/2004,
35/2006,
69/2006 and
47/2007.
LawToday:
www.
legislation.
vic.gov.au
(1) In section 27E(1) of the Subdivision Act 1988,
after "accompanied by" insert "a document
specifying".
(2) At the end of section 27H of the Subdivision Act
1988, insert—
"(2) Without limiting subsection (1), if there is a
special resolution of the members, an owners
corporation may apply to the Registrar to
alter the purposes of the owners corporation.
(3) Without limiting subsection (1), if there is a
special resolution of the members of an
unlimited owners corporation and a special
resolution of the members of a limited
owners corporation, the owners corporations
may apply to the Registrar to alter the
functions or obligations of the limited
owners corporation that are to be carried out
or complied with by the unlimited owners
corporation.
Note
See section 27C.
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(4) On the Registrar altering the purposes of the
owners corporation, the altered purposes
become the purposes of the owners
corporation.
(5) On the Registrar altering the functions or
obligations of the limited owners corporation
that are to be carried out or complied with by
the unlimited owners corporation, section
27C(5) applies as if the alteration were the
registration of the plan and that subsection
referred to the functions or obligations as so
altered.".
(3) In section 32AI(1)(c) of the Subdivision Act
1988, for "the registered plan" substitute "the lot
or lots to be consolidated, subdivided or altered".
38 Amendment of Transfer of Land Act 1958 See:
Act No.
6399.
Reprint No. 15
as at
21 June 2006
and
amending
Act Nos
63/2006,
69/2006,
75/2006 and
47/2007.
LawToday:
www.
legislation.
vic.gov.au
(1) After section 98CA(2)(c) of the Transfer of Land
Act 1958 insert—
"(ca) be accompanied by the relevant owners
corporation documents; and".
(2) After section 98CA(2) of the Transfer of Land
Act 1958 insert—
"(3) In this section and section 98CB owners
corporation documents means the
documents required under Part 5 of the
Subdivision Act 1988 to accompany a plan
of subdivision.".
(3) In section 98CB of the Transfer of Land Act
1958—
(a) in subsection (2) for "and the plan of
subdivision" substitute ", the plan of
subdivision and the owners corporation
documents";
(b) in subsection (4) after "plan of subdivision"
insert "and owners corporation documents".
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(4) In section 98CD(2) of the Transfer of Land Act
1958 for "body corporate" (wherever occurring)
substitute "owners corporation".
39 Repeal of Credit Reporting Act 1978 See:
Act No.
9151.
Reprint No. 1
as at
3 October
1996.
LawToday:
www.
legislation.
vic.gov.au
The Credit Reporting Act 1978 is repealed.
40 Repeal of Amending Act
This Act is repealed on 1 July 2010.
Note
The repeal of this Act does not affect the repeals or amendments
made by it (see section 15(1) of the Interpretation of Legislation
Act 1984).
═══════════════
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Endnotes
ENDNOTES
† Minister's second reading speech—
Legislative Assembly: 6 December 2007
Legislative Council: 28 February 2008
The long title for the Bill for this Act was "A Bill for an Act to amend the
Consumer Credit (Victoria) Act 1995, the Credit (Administration)
Act 1984, the Fair Trading Act 1999, the Residential Tenancies Act
1997, the Sale of Land Act 1962 and certain other Acts and to repeal the
Credit Reporting Act 1978 and for other purposes."
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