CREDIT (ADMINISTRATION) ACT 1984. - legislation.wa.gov.au

WESTERN AUSTRALIA.

CREDIT (ADMINISTRATION)ACT 1984.

(No. 100 of 1984.)

ARRANGEMENT.

PART I—PRELIMINARY.Section.1. Short title.2. Commencement.3. Transitional provisions.4. Interpretation.5. Business of providing credit.

PART II—LICENCES.

Division. 1—Requirement to be licensed.6. Credit providers to be licensed.7. Exemptions from licensing.8. Civil penalty.

Division 2—Licensing provisions.9. Application for licence.

10. Investigation of application.11. Objection to application.12. Grant or refusal of licence.13. Conditions of, and restrictions on, licence.14. Name under which licensee may operate.15. Partnerships.16. Form of licence.17. Change of address.18. Register of licences.19. Inspection of register.20. Term of, and authority conferred by, licence.21. Annual fee and annual statement.22. Surrender of licence.

Division 3—Disciplinary action.

23. Disciplinary action against licensee.

Division 4-Appeals.Section.24. Appeals.

Division 5-General.

25. Death of licensee.26. Endorsement of condition, etc., of licence.

PART III-UNJUST CONDUCT BY CREDIT PROVIDERS.

27. Interpretation.28. Undertakings by credit provider.29. Register of Undertakings.30. Restraint of unjust conduct.31. Variation, etc., of restraining order.

PART IV-INQUIRIES.

32. Minister may order inquiry.33. Notice of inquiry.34. Appearances at inquiry.35. Procedure at inquiry.36. Powers of Tribunal at inquiry.37. Failure to appear at inquiry.38. Refusal to be sworn, etc.39. Power to obtain information.

PART V-FUNCTIONS OF COMMISSIONER IN RELATIONTO PROCEEDINGS.

40. Commissioner may represent debtor, etc.41. Commissioner may proceed for another.42. Conduct of proceedings taken by Commissioner.43. Intervention by Minister or Commissioner.44. Investigation of application to Tribunal.

PART VI-MISCELLANEOUS.

45. Variation of application of Act.46. General penalty.47. Limitation.48. Offence by body corporate.49. Who may take proceedings for offences.50. Disposal of proceedings.51. Evidence.52. Certain rights, etc., saved.53. Application of Consumer Affairs Act 1971.54. Power of entry.55. Production of records.56. Secrecy.57. Extensions of time.58. Service of documents.59. Service by post.60. Annual report.61. Regulations.

SCHEDULE 1-TRANSITIONAL PROVISIONS.

WESTERN AUSTRALIA.

CREDIT (ADMINISTRATION).

No. 100 of 1984.

AN ACT to provide for the licensing of creditproviders; to facilitate inquiries into mattersrelating to the provision of credit; and forcertain other purposes.

[Assented to 19 December 1984.]

BE it enacted by the Queen's Most ExcellentMajesty, by and with the advice and consent

of the Legislative Council and the LegislativeAssembly of Western Australia, in this presentParliament assembled, and by the authority of thesame, as follows:—

PART I-PRELIMINARY.

1. This Act may be cited as the Credit (Admin.. Short title.

istration) Act 1984.

Commence-ment.

No. 100.1 Credit (Administration). [1984.

2. The provisions of this Act shall come intooperation on such day or days as is or arerespectively fixed by proclamation.

3. Schedule 1 has effect.

4. In this Act, except in so far as the context orsubject-matter otherwise indicates or requires

"amount financed" has the same meaning asit has in the Credit Act 1984;

"annual percentage rate" has the same meaningas it has in the Credit Act 1984;

"bank" means a bank within the meaning of theBanking Act 1959 of the Commonwealth asamended and in force for the time being ora bank constituted by a law of a State or ofthe Commonwealth;

"billing cycle" means a billing cycle within themeaning of section 50 of the Credit Act1984;

"body corporate" does not, except in the case ofa credit provider that is a body corporate,include

(a) a body corporate constituted underthe Strata Titles Act 1966, by theproprietor or proprietors of lotswithin the meaning of that Act; or

(b) a company owning an interest inland and having a memorandum orarticles of association conferring onowners of shares in the company theright to occupy certain parts of abuilding erected on that land,

all or the majority of which lots or parts,as the case may be, are intended to beoccupied as dwellings;

TransitionalProvisions.

Interpreta-tion.

1984.] Credit (Administration). [No. 100.

"cognate Acts" means this Act and the CreditAct 1984;

"Commissioner" means the Commissioner forConsumer Affairs appointed under section15 of the Consumer Affairs Act 1971, andany person acting as Commissionerpursuant to section 15 (la);

"continuing credit contract" has the samemeaning as it has in the Credit Act 1984;

"credit" has the same meaning as it has in theCredit Act 1984;

"credit charge" has the same meaning as it hasin the Credit Act 1984;

"credit contract" has the same meaning as it hasin the Credit Act 1984;

"credit provider" has the same meaning as ithas in the Credit Act 1984;

"credit sale contract" has the same meaningas it has in the Credit Act 1984;

"exempt credit provider" means a credit pro-vider to whom, by reason of section 7 or anorder under section 45, the provisions ofsection 6 (1) and (2) do not apply;

"licence" means a credit provider's licence underthis Act;

"loan contract" has the same meaning as it hasin the Credit Act 1984;

No. 100.] Credit (Administration). [1984.

"officer", in relation to a body corporate, in-cludes a person who is an officer of the bodycorporate within the meaning of section 5(1) of the Companies (Western Australia)Code;

"pastoral finance company" means a personcarrying on a business of financing pastoralpursuits or a business of stock or stationagents to whom an order in force undersection 11 of the Banking Act 1959 of theCommonwealth as amended and in forcefor the time being applies;

"record" includes any book, account, document,paper or other source of information com-piled, recorded or stored in written form,or on microfilm, or by electronic process, orin any other manner or by any other means;

"Registrar" means Registrar of the Tribunal;

"regulated contract" has the same meaning asit has in the Credit Act 1984;

"regulated mortgage" has the same meaning asit has in the Credit Act 1984;

"trade or tie agreement" has the same meaningas it has in the Credit Act 1984;

"Tribunal" means the Commercial Tribunal ofWestern Australia established under theCommercial Tribunal Act 1984.

Business of 5. In this Act, a reference to carrying on a bushprovidin6credit. ness of providing credit includes a reference to

carrying on the provision of credit in the course ofor as part of or as incidental to or in connection withthe carrying on of another business.


PART II—LICENCES.

Division 1—Requirement to be licensed.

6. (1) Subject to this Act, a person shall notcarry on a business of providing credit unless theperson is the holder of a credit provider's licence.

Penalty: $10 000.

(2) Subject to this Act, a natural person shall nothold himself or herself out, and a body corporateshall not hold itself out, as carrying on a businessof providing credit unless the person or body cor-porate, as the case may be, is the holder of a creditprovider's licence.

Penalty: $5 000.

7. (1) The provisions of section 6 do not applyto

(a) the Crown or a public or local body orauthority constituted by or under an Act;

(b) a bank;

(c) a body corporate that is registered underthe Life Insurance Act 1945 of the Com-monwealth as amended and in force forthe time being unless the only or principalbusiness carried on by it is the business ofproviding credit;

(d) a body corporate authorised under theInsurance Act 1973 of the Commonwealthas amended and in force for the time beingto carry on insurance business unless theonly or principal business carried on by it isthe business of providing credit;

(e) unless Part VII of the Insurance Act 1973of the Commonwealth as amended and inforce for the time being has ceased to haveeffect—a Lloyd's underwriter, being anunderwriter of the society known as Lloyd'sincorporated by the Imperial Act known asLloyd's Act 1871;

Creditprovidersto belicensed.

Exemptionsfromlicensing.


(f) the holder of a pawnbroker's license issuedunder the Pawnbrokers Act 1860, in respectof the business of a pawnbroker carried onin accordance with that Act;

(g) a pastoral finance company;

(h) a society or association registered underthe Building Societies Act 1976.

(i) a credit union registered under the CreditUnions Act 1979; or

(j) any other person empowered by an Act oran Act of the Commonwealth to lend moneyor provide credit, in respect of the lendingof money or provision of credit in accord-ance with that Act or that Act of theCommonwealth.

(2) A reference in section 6 tobusiness of providing credit doesreference to

(a) providing credit otherwiseregulated contract; or

carrying on anot include a

than under a

(b) collecting money due to a person whoselicence has been surrendered, is suspendedor has been cancelled.

Civil penalty. 8. (1) Subject to section 85 of the Credit Act1984, where a person provides credit under aregulated contract in contravention of section 6 (1)and

(a) the contract is a credit sale contract or aloan contract—the debtor is not liable topay to the credit provider the amountfinanced, or the credit charge, under thecontract; or


(b) the contract is a continuing credit contract—the debtor is not liable to pay to the creditprovider the amount owing under thecontract, or the credit charge, applicable inrespect of the billing cycle during whichthe credit was provided.

(2) Where a debtor pays to a credit provider anamount that, in accordance with subsection (1),the debtor is not liable to pay, the amount is a debtdue by the credit provider to the debtor.

(3) Nothing in this section affects the liability ofa person to be convicted of an offence against thisAct.

Division 2—Licensing Provisions.

9. (1) An application for a credit provider'slicence may be made to the Tribunal

(a) by a natural person of or over the age of18 years; or

(b) by a body corporate if all persons concernedin the management of the body corporateare of or over the age of 18 years.

(2) An application shall be in writing in a formapproved by the Minister, shall be accompanied bythe prescribed fee and shall be signed

(a) where the application is made by a naturalperson—by that person; or

(b) where the application is made-

(i) by a body corporate having only 2directors—by those directors; or

(ii) by a body corporate having morethan 2 directors—by not fewer than2 of those directors.

Applicationfor licence.


(3) An application shall specify

(a) the name and address-

(i) where the application is made by anatural person—of that person; or

(ii) where the application is made by abody corporate—of each director ofthe body corporate;

(b) where the application is made by a bodycorporate—the date and place ofincorporation of the body corporate, itscorporate name and the address of itsregistered office or, if it is not incorporatedin Australia, the address of the principaloffice in Australia;

(c) the address of the principal place in theState at which, and the name or namesunder which, the applicant intends to carryon business pursuant to the authority thatwould be conferred by the licence if it weregranted;

(d) whether the applicant intends to carry onthat business in partnership with anotherperson;

(e) such matters as may be prescribed relatingto the financial standing of applicants; and

(f) such other matters as may be prescribed.

(4) Where application is made for a licence and,before the application is granted or refused, achange occurs in the particulars specified in theapplication in accordance with subsection (3), theapplicant shall, within 14 days after the occurrenceof the change, give to the Tribunal notice, in writingsigned by the applicant or, where the applicant is abody corporate, by a director of the body corporate,specifying particulars of the change.

Penalty: $1 000.


(5) An applicant for a licence shall, if requiredto do so by the Tribunal or the Registrar, providethe Tribunal with such particulars additional tothose included in the application as the Tribunalor the Registrar requires.

(6) A person shall not in, or in relation to, anapplication under this section, a notice under sub-section (4) or any particulars provided under sub-section (5), make a statement that is false ormisleading by reason of the inclusion therein of anyfalse or misleading matter or the omission therefromof any material matter.

Penalty: $5 000.

(7) It is a defence to a prosecution of a person foran offence under subsection (6) if the person provesthat, when the application was made, the noticegiven or the particulars provided, the person-

(a) believed on reasonable grounds that thefalse matter was true;

(b) believed on reasonable grounds that themisleading matter was not misleading;

(c) in the case of an omission—believed onreasonable grounds that no material matterhad been omitted; or

(d) in the case of an omission—did not knowthat the omitted matter was material.

10. (1) Where an application for a licence has i;xlvalfe?E'been made in accordance with section 9, the ti°21•

Registrar shall send a copy of the application to theCommissioner with a request in writing that theCommissioner make such inquiries with respect tothe applicant and the application as the Registrarspecifies in the request.


(2) The Commissioner shall make such inquiriesas are specified in the request sent to theCommissioner under subsection (1) and such otherinquiries as the Commissioner considers necessaryand shall, as soon as practicable after making theinquiries, prepare a report on the results of theinquiries and submit the report to the Tribunal.

(3) The Commissioner of Police shall, if the Com-missioner for Consumer Affairs so requests, investi-gate an application a copy of which is sent to theCommissioner for Consumer Affairs under sub-section (1) and, as soon as practicable after com-pleting the investigation, make a report to the Com-missioner for Consumer Affairs on the investigation.

(4) As soon as practicable after the Commissionersubmits to the Tribunal a report on an application,the Registrar shall publish in a newspapercirculating generally throughout Western Australiaa notice giving particulars of the application.

Objection toapplication. 11. (1) At any time before the expiration of the

period of 14 days that next succeeds publication ofa notice under section 10 (4) with respect to anapplication for a licence, or within such longerperiod as the Tribunal in a particular case allows,the Commissioner may with the consent of theMinister, and any other person may, lodge with theTribunal an objection in writing to the granting ofthe application if the objection complies with sub-section (2).

(2) An objection complies with this subsectionif

(a) it specifies the ground of the objection;

(b) the ground of the objection is a ground onwhich the Tribunal is required to refuse anapplication for a licence; and

1984.1 Credit (Administration). [No. 100.

(c) the Commissioner or other person makingthe objection has, before the expiration ofthe period referred to in subsection (1),served on the applicant a copy of the objec-tion.

12. (1) Subject to subsections (2) and (4), the gfrit,t`t'tTribunal shall grant an application for a licence— licence.

(a) except where a hearing is required to beheld in respect of the application as pro-vided by subsection (5)—as soon as prac-ticable after the expiration of the periodallowed by or under section 11 (1) for thelodging of an objection to the granting ofan application; or

(b) if a hearing is, pursuant to subsection (5),required to be held with respect to theapplication—as soon as practicable afterthe conclusion of the hearing.

(2) An application for a licence made by a naturalperson shall be refused if it appears to the Tribunalthat the person-

(a) has not attained the age of 18 years;

(b) is disqualified from holding a licence;

(c) is an undischarged bankrupt;

(d) does not have, or is not likely to continue tohave, sufficient financial resources to enablethe person to carry on business pursuantto the authority that would be conferredby the licence if it were granted;

(e) is not a person likely to carry on such abusiness honestly and fairly;

(f) does not have sufficient expertise to enablethe person to carry on such a business; or

(g) is in any other way not a fit and properperson to be the holder of a licence.


(3) Without affecting the generality of subsection(2) (g), the Tribunal may, in determining whetheran applicant is not a fit and proper person to be theholder of a licence, have regard (if such be the case)to the fact that the applicant

(a) has, during the period of 10 years that lastpreceded the making of the application,been convicted of, or served any part of aterm of imprisonment for, an offence inWestern Australia or elsewhere involvingfraud or dishonesty;

(b) was, at the time of the making of the appli-cation, bound in relation to such an offenceby a recognizance; or

(c) had, at the time of the making of the appli-cation, a charge pending against the appli-cant in relation to such an offence.

(4) An application for a licence made by a bodycorporate shall be refused if it appears to theTribunal that

(a) a person concerned in the management ofthe body corporate has not attained theage of 18 years;

(b) the body corporate is disqualified fromholding a licence;

(c) the body corporate does not have, or is notlikely to continue to have, sufficientfinancial resources to enable it to carryon business pursuant to the authority thatwould be conferred by the licence if it weregranted;

(d) the body corporate is not likely to carry onsuch a business honestly and fairly;

(e) the officers of the body corporate are suchthat it would not have sufficient expertise toenable it to carry on such a business;

(f) the reputation of the body corporate is suchthat it would not be a fit and proper personto be the holder of a licence;


(g) an officer of the body corporate isdisqualified from being an officer of a bodycorporate that is the holder of a licence;

(h) a director of, or a person concerned in themanagement of, the body corporate is notof good reputation or character or in anyother way would not be a fit and properperson to be the holder of a licence if thedirector or person were to apply for thelicence personally; or

(i) any person other than an officer of thebody corporate who, in the opinion of theTribunal, appears to have control, orsubstantial control, of the body corporateis not of good reputation and character oris not likely to exercise that control honestlyand fairly.

(5) An application for a licence shall not berefused on a ground specified in subsection (2) (d)to (g) or (4) (c) to (i) unless the Tribunal issatisfied that the ground has been made out afterit-

(a) has informed the applicant of the groundand has held a hearing with respect to theapplication; and

(b) has afforded the applicant and any personwho, in accordance with section 11, haslodged an objection on that ground, anopportunity to appear at the hearing and tomake submissions and adduce evidence.

(6) Where an application for a licence is refused,the Registrar shall forthwith, by notice in writingserved on the applicant and each objector (if any)to the granting of the application, inform theapplicant and each such objector of the refusal andof the ground on which the refusal is based and theRegistrar shall, as soon as practicable, refund to thethe applicant so much of the application fee as isspecified by the Tribunal as appropriate to berefunded.


(7) Where an application for a licence in respectof which an objection has been lodged in accordancewith section 11 is granted, the Registrar shallforthwith, by notice in writing, inform the personwho lodged the objection of the granting of theapplication.

(8) Where an application for a licence isgranted

(a) the applicant shall be deemed to be theholder of the licence granted; and

(b) the Registrar shall forthwith, by notice inwriting, inform the applicant of thegranting of the application.

(9) Notwithstanding anything in this section, theTribunal may refrain from granting an applicationfor a licence unless

(a) where the applicant is not a body corporate—the applicant; or

(b) where the applicant is a body corporate—all of the directors and officers of the bodycorporate, or such of them as the Tribunalspecifies or refers to,

has or have appeared personally before the Tribunaland satisfied the Tribunal as to such relevantmatters referred to in this section as the Tribunalthinks appropriate.

Conditionsof, andrestrictionson, licence.

13. (1) The Tribunal may

(a) upon the granting of an application for alicence and at any other time, imposeconditions or restrictions subject to whichthe licence is to be held; and

(b) upon application or of its own motion, atany time vary or revoke any of those condi-tions or restrictions.


(2) A licence is subject to(a) any prescribed conditions and restrictions;

and(b) any conditions and restrictions in force

under subsection (1).

(3) Subject to subsection (4), the Tribunal shallnot impose conditions or restrictions to which alicence is to be subject, or vary conditions or restric-tions to which the licence is subject, unless theTribunal has first held a hearing with respect to theconditions and restrictions that are proposed to beimposed or varied and has afforded the applicantfor, or, as the case may be, the holder of, the licencean opportunity to appear at the hearing and to makesubmissions and adduce evidence with respect tothe conditions or restrictions proposed to be imposedor varied.

(4) The Tribunal may determine not to hold ahearing before it imposes or revokes a condition orrestriction to which a licence is subject upon applica-tion by the licensee.

Name underwhichlicensee mayoperate.

14. (1) Subject to the Business Names Act1962, a licence may authorise the holder to carryon business under a name or names in addition toor in substitution for the name of the licensee.

(2) A licensee shall not

(a) carry on a business of providing credit;(b) in the case of a natural person—hold him-

self or herself out as carrying on such abusiness; or

(c) in the case of a body corporate—hold itselfout as carrying on such a business,

under a name or names other than the name of thelicensee or the name or names under which thelicensee is authorised so to do in accordance withsubsection (1).

Penalty: $5 000.


(3) Upon application made in accordance withthe rules, the Tribunal may add or amend anendorsement referred to in section 16 (1) (b).

Partnerships. 15. The holder of a credit provider's licence shallnot carry on a business of providing credit in part-nership with a person who is not the holder of acredit provider's licence.

Penalty: $5 000.

Form oflicence. 16. (1) A licence shall be signed and issued by

the Registrar and

(a) shall be in a form approved by the Minister;and

(b) where it authorises the holder to carry onbusiness under a name or names in additionto, or in substitution for, the name of theholder, shall bear an endorsement to thateffect.

(2) Where the Registrar is satisfied that a licencehas been lost or destroyed, the Registrar may, onpayment of the prescribed fee, issue a duplicate ofthe licence.

Change ofaddress oflicensee.

17. (1) Where the principal place at which alicensee carries on, or intends to carry on, a businessof providing credit is at an address other than anaddress specified in accordance with section 9 (3)(c) or of which notice has been given under thissection, the licensee shall, not later than 14 daysafter commencing to carry on the business at thatother address, give to the Commissioner notice inwriting of that other address.

(2) A licensee shall, not later than 14 days afterceasing to carry on a business of providing creditat the address specified in accordance with section9 (3) (c) or, where a notice has been given under


subsection (1), at the address specified in the notice,give to the Commissioner notice in writing that thelicensee has ceased to carry on the business at thataddress.

Penalty: $1 000.

18. (1) For the purposes of this Act, the Registrarshall keep a register to be known as the Register ofLicensed Credit Providers.

(2) Subject to this Act, the register shall be keptin such form and manner as the Minister thinks fit.

19. A person, on application in accordance withany regulations and on payment of any prescribedfee

Register oflicensees.

Inspectionof register.

(a) may inspect the register kept under section18; and

(b) may make a copy of, or take extracts from,the register.

20. (1) Except during any period while it is Taned aghoritysuspended, a licence continues in force until it is =info:et:ea by,surrendered under section 22 or cancelled undersection 21 or 23.

(2) A credit provider's licence authorises thelicensee to carry on a business of providing creditunder the name or names specified in the licence,subject to and in accordance with this Act and theconditions and restrictions to which the licence issubject.

(3) For the purposes of this Act, sections 21 and22 excepted, a person whose licence is suspendedunder section 23 shall, while the suspension con-tinues, be deemed to be a person who does not holda licence.

Annual feeand annualstatement.


21. (1) A licensee shall, before the expiration ofone month after each anniversary of the date onwhich the licence was granted, pay to the Commis-sioner in respect of the year commencing on thatanniversary the prescribed fee for the licence.

(2) A person who is or was the holder of a licenceduring a year, or part of a year, commencing on thedate, or an anniversary of the date, on which thelicence was granted to the person, shall lodge withthe Commissioner a statement in respect of that yearor part that is in a form approved by the Ministerand is signed by or on behalf of the licensee.

(3) A licensee or other person required under sub-section (2) to lodge a statement shall lodge thestatement within one month after the end of theyear in respect of which, or part of which, the state-ment is lodged.

(4) The Commissioner may, on the application ofa person required to comply with subsection (1),or subsections (2) and (3), extend or further extendthe time for compliance with the applicable sub-section or subsections.

(5) Where a licensee has failed to pay a fee, orlodge a statement, or pay a fee and lodge a state-ment, in accordance with this section, the Commis-sioner shall give notice in writing to the licenseethat, unless the fee is paid or the statement lodged,or the fee is paid and the statement lodged, as thecase may require, together with the prescribed latefee, before a day specified in the notice, being a daythat is not earlier than 14 days after the giving ofthe notice, the licence will be cancelled.

(6) The Commissioner shall cancel the licenceof a licensee who fails to pay a fee or lodge a state-ment, or pay a fee and lodge a statement, as referredto in a notice given under subsection (5).

(7) Subject to subsection (4), a person (not beinga licensee) to whom subsections (2) and (3) applyshall comply with those subsections.

Penalty: $1 000.


(8) If, while a licence is in force, there occurs

(a) between the time the application for thelicence was granted and the time the firststatement is lodged under subsection (2)-a change in the particulars specified in, orin connection with, the application inaccordance with section 9 (3), (4) and (5);

or

(b) between the lodging of successive annualstatements under subsection (2)—a changein the particulars specified in the earlier ofthose statements,

the licensee shall, within 14 days of the occurrenceof the change, give to the Commissioner notice inwriting specifying particulars of the change.

Penalty: $1 000.

(9) A person shall not, in or in relation to astatement required to be lodged under subsection(2) or a notice required to be given under subsection(8), make a statement that is false or misleading byreason of the inclusion therein of any false or mis-leading matter or the omission therefrom of anymaterial matter.

Penalty: $5 000.

(10) It is a defence to a prosecution of a personfor an offence under subsection (9) if the personproves that, when the statement was lodged, or thenotice given, the person-

(a) believed on reasonable grounds that thefalse matter was true;

(b) believed on reasonable grounds that themisleading matter was not misleading;

(c) in the case of an omission—believed onreasonable grounds that no material matterhad been omitted; or

(d) in the case of an omission—did not knowthat the omitted matter was material.

Surrenderof licence.

Disciplinaryactionagainstlicensee.


22. (1) Subject to this section, a licensee may, bynotice in writing given to the Commissioner andaccompanied by the licence, surrender the licence.

(2) Where the Tribunal has decided to hold aninquiry under section 23 in relation to the holding ofa licence, the licence may not be surrendered untilafter a determination is made by the Tribunal asa result of the inquiry.

(3) Where a licence is surrendered, the Commis-sioner shall refund to the former licensee so muchof the fee for the licence last paid under section 21(1) as the Tribunal, upon application by the formerlicensee, specifies as appropriate to be refunded.

Division 3—Disciplinary action.

23. (1) The Commissioner may with the consentof the Minister, and any other person may, at anytime lodge with the Tribunal an objection in writingto the holding of a licence by a specified licensee ifthe objection complies with subsection (2).

(2) An objection complies with this subsectionif

(a) it specifies the licensee and the grounds ofthe objection to the holding of a licence bythe licensee; and

(b) the grounds of the objection are such thatthey could reasonably give rise to a belief onthe part of the Chairman sufficient torequire the Tribunal to hold an inquiryunder subsection (4).

(3) The Chairman may refer to the Commissioneran objection lodged by a person other than theCommissioner, and the Commissioner shallinvestigate, and report to the Tribunal upon, theobjection.


(4) Where it appears to the Chairman, whether ornot pursuant to an objection under subsection (1),that there are grounds for believing that

(a) a licence may have been improperlyobtained or, at the time a licence wasgranted, there may have been grounds forrefusing to grant it;

(b) a licensee may have failed to comply withthis Act, the Credit Act 1984, or a regulationunder either Act, a condition or restrictionto which the licence is subject or an order ofthe Tribunal applicable to the licensee;

(c) a licensee may be unable, or is likely tobecome unable, to meet the licensee'sliabilities;

(d) a licensee has, within the period of 10 yearsthat last preceded the grant of the licence,been found guilty of an offence involvingfraud or dishonesty punishable on convic-tion by imprisonment for 3 months ormore;

(e) the holder of a credit provider's licence hasprovided credit at an interest rate that isexcessive having regard to the risk involved,the value of any security, the time for re-payment, the amount of credit providedand any other relevant circumstances;

(f) the business to which a licence relates isbeing carried on in a dishonest or unfairmanner;

(g) the holder of a credit provider's licence hastaken security for the performance of thedebtor's obligations under a regulated con-tract that is excessive having regard to therisk involved, the value of the security, thetime for repayment, the amount of creditprovided, the annual percentage rate andany other relevant circumstances;


(h) the holder of a credit provider's licence hastaken security for the performance of thedebtor's obligations under a regulated con-tract that, having regard to the nature andvalue of the security, the amount of creditprovided and any other relevant circum-stances, is unreasonable;

(i) if a person were not the holder of a licence,the Tribunal would be required by section12 (2) or (4) to refuse an application by theperson for a licence; or

(j) the licensee is, for any other reason, not afit and proper person to continue to holda licence,

the Chairman may arrange for the Tribunal tohold an inquiry to determine whether or not totake action under subsection (8) in relation to thelicence.

(5) An objection to the holding of a licence maybe dismissed by the Tribunal if it is of the opinionwhether before, during or after an inquiry

(a) that the objection is frivolous, vexatious,misconceived or lacking in substance; or

(b) that none of the grounds referred to in sub-section (4) has been, or can be, made out.

(6) Where, pursuant to subsection (4), the Chair-man has arranged for the Tribunal to hold an in-quiry in relation to a licence, the Registrar shall

(a) send to the licensee a notice specifying thegrounds for the belief on the part of theChairman referred to in subsection (4) anda copy of any objection in writing to theholding of the licence lodged with theTribunal; and


(b) give notice in writing of the day appointedfor the inquiry to the licensee and to eachperson by whom any such objection hasbeen lodged with the Tribunal before theday on which the Registrar gives the notice.

(7) The Tribunal shall give to the licensee andeach other person referred to in subsection (6) (b)an opportunity to appear at the inquiry and beheard.

(8) If, after holding an inquiry in relation to alicence, the Tribunal is satisfied that any groundfor a belief on the part of the Chairman referred toin subsection (4) has been made out, the Tribunalmay do any one or more of the following

(a) reprimand the licensee;

(b) impose on the licensee a fine not exceeding$1 000 payable within a specified time;

(c) require the licensee to comply within aspecified time with a requirement specifiedby the Tribunal;

(d) suspend the licence for a period notexceeding 12 months;

(e) disqualify the licensee or any personconcerned in the direction, managementor conduct of the business of the licenseefrom holding a licence or from beingconcerned in the direction, management orconduct of a business for the carrying onof which a licence is required eitherpermanently or for such period as theTribunal thinks fit;

cancel the licence.


(9) Where, under subsection (8), the Tribunal(a) imposes a fine on a licensee; or(b) requires a licensee to comply with a

requirement specified by the Tribunal,

the licensee shall pay the fine or comply with therequirement within the time specified by theTribunal under that subsection.

Penalty: $5 000.

(10) A fine imposed under subsection (8) (b) is,if not paid within the time specified by the Tribunalfor its payment, a debt due to the Crown.

(11) Where the Tribunal disqualifies a licenseeunder subsection (8) (e), the Tribunal shall cancelthe licence.

(12) Where the Tribunal(a) suspends a licence—the licensee; or

(b) cancels a licence—the former licensee,

shall return the licence to the Registrar within aperiod specified by the Tribunal when suspendingor cancelling the licence.

Penalty: $1 000.

(13) A person disqualified under subsection (8)(e) shall not, while disqualified

(a) hold a licence; or

(b) be concerned in the direction, managementor conduct of a business of providing credit.

Penalty: $5 000.

(14) If a person has been convicted of an offenceand the circumstances of the offence form, whollyor partly, the subject-matter of an inquiry underthis section, the person is not liable to a fine underthis section in respect of the conduct giving rise tothe offence.

1984.j Credit (Administration). [No. 100.

Division 4—Appeals.

24. (1) Notwithstanding anything in the Appeals.

Commercial Tribunal Act 1984, where the Tribunalrefuses to grant an application for, or cancels orsuspends, a licence or imposes a condition orrestriction under section 13, or imposes adisqualification referred to in section 23 (8) (e), theapplicant for the licence or the person who held thelicence or the person disqualified, as the case may be,may appeal to the District Court in accordance withrules of the Court.

(2) An appellant under subsection (1) shall,within 28 days after lodging the appeal, give noticein writing of the appeal, together with the groundsof the appeal, to the Commissioner.

(3) An appeal under this section does not, exceptin relation to the collection of payments by a creditprovider, operate to stay the cancellation,suspension, disqualification or imposition of acondition or restriction unless the Tribunal or theDistrict Court otherwise orders and any conditionsimposed by the Tribunal or the District Court whenordering the stay are complied with.

Division 5—General.

25. (1) Where a licensee dies, a person who is, heath of

or who is named as, or who intends to apply tobecome, a legal personal representative of thelicensee may, within 28 days after the death orsuch longer period as the Registrar allows, apply tothe Registrar for authority to carry on, until theexpiration of the period of 180 days that nextsucceeds the death, the business of the deceasedlicensee to which the licence relates.

(2) The Registrar

(a) shall give a copy of an application undersubsection (1) to the Commissioner whomay, within 7 days, lodge with the Registraran objection to the granting of the


application in writing that specifies theground of the objection and, where suchan objection is lodged, the Commissionershall serve a copy thereof on the applicant;

(b) if an objection to the granting of theapplication is lodged and served as providedby paragraph (a)—shall refer the applica-tion to the Tribunal; and

(c) if no such objection is so lodged and served—shall grant the application.

(3) Where an application is, pursuant to sub-section (2) (b), referred to the Tribunal, theTribunal shall grant or refuse the application and,where it grants the application, may impose suchconditions as it thinks fit, being conditions subjectto which the business to which the applicationrelates may be carried on.

(4) A decision of the Tribunal under subsection(3) shall be made at a hearing at which theapplicant and the Commissioner are given anopportunity to appear and be heard.

(5) An applicant whose application is grantedunder this section shall, subject to this Act, theregulations and any conditions imposed undersubsection (3), be deemed, until no later than theexpiration of the period of 180 days that nextsucceeds the death of the licensee, to be the holderof the licence of the deceased licensee.

==, 26. Where a licensee is required to comply withetc., of a requirement specified by the Tribunal underlicence.

section 23 (8) (c) or to carry on the business towhich the licence relates subject to conditions orrestrictions imposed under section 13 or 25 (3), thelicensee shall, upon being required by the Registrarso to do within a specified time, produce the licenceto the Registrar within that time for endorsementof the condition, restriction or requirement.

Penalty: $1 000.


PART III-UNJUST CONDUCT BY CREDIT PROVIDERS.

27. For the purposes of this Part, conduct of a iron. preta-credit provider (whether or not the credit provideris the holder of a licence or is an exempt creditprovider) is unjust if it is conduct

(a) that is dishonest or unfair;

(b) that consists of anything done, or omittedto be done, in breach of contract, whetheror not proceedings in respect of the breachhave been brought; or

(c) that consists of the contravention of thisAct, the Credit Act 1984, or a regulationunder either of them.

28. (1) Where it appears to the Commissioner bu311,ggrngsthat a credit provider has, in the course of a business provider.

of providing credit, repeatedly engaged in unjustconduct, the Commissioner may, with the consentof the Minister

(a) request the credit provider to execute adeed in terms approved by the Commis-sioner whereby the credit provider givesundertakings as to-

(i) the discontinuance of the unjustconduct;

(ii) the credit provider's future conduct;and

(iii) the action the credit provider willtake to rectify the consequencesof the credit provider's unjustconduct;

or

(b) apply to the Tribunal for an order undersection 30 (1).


(2) Where the Commissioner makes a request orapplication under subsection (1), it shall bepresumed, unless the contrary is proved, that theCommissioner does so with the consent of theMinister.

(3) Where a licensee executes a deed under sub-section (1) (a) and observes the undertakingsgiven in the deed

(a) proceedings may not be instituted undersection 23; and

(b) the Commissioner may not apply for anorder under section 30 (1),

by reason of any conduct to which the undertakingsrelate.

Register of- 29. (1) Where a credit provider executes a deedUnder

takings containing undertakings as referred to in section28 (1) (a), the Commissioner shall

(a) lodge a copy of the deed with the Registrar;and

(b) give a copy of the deed to the credit providerwho executed it.

(2) The Commissioner shall retain all deeds andshall register the deeds in a Register of Undertakingskept by the Commissioner and containing theprescribed particulars.

(3) The Register of Undertakings may, at anyreasonable time, be inspected by any person freeof charge.

(4)A credit provider shall observe undertakingsgiven by the credit provider in a deed executedunder section 28 (1) (a).

Penalty: $10 000.

(5)A prosecution for an offence under subsection(4) shall not be instituted except by the Commis-sioner with the leave of the Tribunal given whenmaking an order in accordance with section 30 (2).


30. (1) Where, on the application of the Com- Itneis=t of

missioner, the Tribunal is satisfied after inquiry conduct.

that a credit provider has repeatedly engaged inunjust conduct, the Tribunal may order the creditprovider to refrain from engaging in unjust conductin the course of carrying on a business of providingcredit and the credit provider shall comply with theorder.

Penalty: $10 000.

(2) Where, on the application of the Commis-sioner, the Tribunal is satisfied that a credit providerhas failed to observe an undertaking given by thecredit provider in a deed executed under section 28(1) (a), the Tribunal may make an order under sub-section (1) against the credit provider and, in thecase of an undertaking referred to in section 28(1) (a) (iii), an order to observe that undertakingwithin a time specified by the Tribunal when mak-ing the order.

(3) Where the Commissioner applies for an orderunder subsection (1) or (2) against a credit providerthat is a body corporate and the Tribunal is satisfiedthat the unjust conduct or breach of undertakingto which the application relates was engaged in withthe consent or connivance of a person who, at thetime of the conduct or breach, was a director of, ora person concerned in the management of, the bodycorporate, the Tribunal may, in addition to anyother order it may make under this section, makean order prohibiting the person from consenting to,or conniving at, engagement in unjust conduct, or abreach of an undertaking under section 28 (1) (a),by the body corporate or any other body corporateof which the person is a director or in the manage-ment of which the person is concerned and the per-son to whom the order relates shall comply withthe order.

Penalty: $10 000.

(4) An order under this section may be madesubject to such conditions (whether as to the dura-tion of the order or otherwise) as the Tribunalthinks fit including conditions as to the future

No. 100.] Credit (Administration.). [1984.

conduct of the credit provider and conditions speci-fying the action to be taken by the credit providerto rectify the consequences of the credit provider'sunjust conduct.

Variation,etc., ofrestrainingorder.

31. The Tribunal may, on the application of theCommissioner, vary or discharge an order madeunder section 30.

PART Iv-INQUIRIES.

Ministermay orderinquiry.

32. (1) The Minister may, by instrument in writ-ing, appoint the Tribunal (constituted as specifiedin the instrument) or any person to inquire intomatters specified in the instrument, being mattersthat relate to the provision of credit or consequencesof the provision of credit, or both.

(2) The Minister may, by instrument in writing,revoke an appointment made under subsection (1).

(3) An appointment under subsection (1) may bemade subject to such conditions or limitations as tothe exercise or performance of a power, authority,duty or function, or as to time or circumstances, asmay be specified in the instrument of appointment.

(4) Subject to subsection (3), the Tribunal orperson appointed under subsection (1) has, and mayexercise the functions conferred on the Tribunal byor under this Part.

(5) An appointment under subsection (1) or arevocation under subsection (2) of such an appoint-ment does not take effect until the terms of theinstrument of appointment or revocation have beenpublished in the Gazette and in such newspaper ornewspapers as is or are specified in the instrument.

(6) Where any matter purporting to be the termsof an instrument of appointment under subsection(1) or of revocation under subsection (2) is pub-lished in the Gazette, it shall be presumed, unlessthe contrary is proved, that the matter comprisesthe terms of such an instrument.


(7) Where an inquiry is held under this Part, theTribunal or person conducting the inquiry shall, assoon as practicable, report to the Minister the resultsof the inquiry and make such recommendationswith respect to those results as the Tribunal or thatperson thinks fit.

(8) The protection and immunity conferred bysection 22 of the Commercial Tribunal Act 1984, ona member of the Tribunal extend to a person ap-pointed under subsection (1).

(9) A reference in the Commercial Tribunal Act1984, to proceedings before the Tribunal does notinclude a reference to an inquiry under this Part.

33. The Tribunal shall, before commencing an rntcgrinquiry under this Part, give notice by advertisementpublished on such day or days as it thinks fit in theGazette and in such newspaper or newspapers as itthinks fit of

(a) the holding of the inquiry;

(b) the matter that is to be the subject of theinquiry;

(c) the time and place at which the inquiry isto be commenced; and

(d) such other matters relating to the inquiryas it thinks fit.

34. (1) The Tribunal may, at an inquiry underthis Part, grant leave to any person to appear atthe inquiry if it is of the opinion that the personhas a substantial interest in the matter the subjectof the inquiry.

(2) A person granted leave under subsection (1)to appear at an inquiry may appear at the inquiryin person or by counsel, solicitor or agent and maygive evidence, call witnesses and make submissionsat the inquiry.

Appearancesat inquiry.

Procedure atinquiry.

Powers ofTribunalat inquiry.


35. (1) An inquiry under this Part shall be heldin public and, subject to this section

(a) evidence at the inquiry shall be given onoath in public; and

(b) submissions at the inquiry shall be madein public.

(2) At an inquiry under this Part, the Tribunalmay, if it thinks fit, permit a witness to give evidenceby tendering a written statement verified on oathand, where the evidence is so given, the Tribunalshall, subject to this section, make the statementavailable to the public in such manner as theTribunal thinks fit.

(3) Where a witness giving evidence under sub-section (1) or (2) objects to any part of the evidencebeing made public and the Tribunal is satisfied thatthe part of the evidence to which the objectionrelates is of a confidential nature, that part of theevidence shall not be taken in public under sub-section (1) or made public under subsection (2).

(4) At an inquiry under this Part, the Tribunalmay require or permit a person entitled to makesubmissions to make them in writing and, wheresubmissions are so made, the Tribunal shall makethem public in such manner as it thinks fit.

(5) In conducting an inquiry under this Part,the Tribunal is not bound by the rules of evidence.

36. (1) For the purposes of an inquiry underthis Part, the Tribunal may

(a) issue a summons to a witness to giveevidence or produce a record, or both, atthe inquiry;

(b) administer an oath; and

(c) take evidence on oath.


(2) Where, pursuant to this section, a person isrequired by a summons to produce a record and therecord is not in writing, or is not written in theEnglish language, or is not decipherable on sight,the summons shall be deemed to require the personto produce, in addition to the record if it is in writing,or instead of the record if it is not in writing, astatement, written in the English language anddecipherable on sight, containing the whole of theinformation in the record.

(3) A witness summoned to attend or appearingbefore the Tribunal has the same protection and,without affecting any penalty that may be imposedpursuant to this Act, is subject to the same liabilities,as a witness would have or be subject to inproceedings before the District Court.

(4) A witness summoned under subsection (1) isentitled to be paid such fees and allowances as areprescribed.

37. A person who, pursuant to section 36 (1) (a), YlVgat.:has been summoned as a witness shall not, without !"'q"1"'lawful excuse, fail to appear in obedience to thesummons.

Penalty: $1 000 or imprisonment for 6 months, orboth.

38. A person who appears as a witness at an 11,TirIXinquiry under this Part, whether summoned or not,shall not, without lawful excuse, refuse to be sworn,or to produce a record or statement in accordancewith a summons, or to answer a question after beingrequired to answer it.


Power toobtaininformation.

No. 100.E Credit (Administration). [1984.

39. (1) For the purposes of an inquiry underthis Part, the Tribunal or a person authorised bythe Tribunal for the purposes of this section (in thissection referred to as the "authorised person") mayrequire any person-

(a) to give information; or

(b) to answer any question,

in relation to the subject-matter of the inquiry.

(2) The Tribunal or authorised person mayrequire information to be given, or a question to beanswered, on oath either orally or in writing and,for the purposes of such a requirement, mayadminister an oath.

(3) The Tribunal or authorised person may, bynotice in writing, require information to be given,or a question to be answered, in writing at a placespecified in the notice.

(4) A person shall not

(a) fail to comply with a requirement undersubsection (1), (2) or (3); or

(b) give, pursuant to such a requirement,information or an answer that to theperson's knowledge is false or misleading inany particular.


(5) A person is not obliged to give information oranswer a question which the person has, pursuant tosubsection (1), been required to give or answer unlessthe person has first been informed by the Tribunalor authorised person that the person is requiredand obliged by this section to give the information oranswer the question.


(6) A person shall not refuse to comply with arequirement under subsection (1) on the groundthat compliance with a requirement mightincriminate the person or render the person liableto a penalty.


(7) Information and answers given by a personpursuant to a requirement under subsection (1) arenot admissible in evidence against the person inany civil or criminal proceedings other thanproceedings for perjury or for an offence undersubsection (4).

(8) A certificate signed by a member of theTribunal or a person appointed under section 32 (1)to the effect that a person specified therein was, ona day or during a period so specified, an authorisedperson for the purposes of this section is, withoutproof of the signature or of the official character ofthe person by whom it purports to have been signed,admissible in evidence in any proceedings and isevidence of the matters so certified.

PART V-FUNCTIONS OF COMMISSIONER INRELATION TO PROCEEDINGS.

40. In any proceedings before the Tribunal, a =ayperson may, notwithstanding anything in the rdeArte:re, nett

Commercial Tribunal Act 1984, be represented bythe Commissioner or by counsel, solicitor or agentfor the Commissioner.

41. (1) Where a person, not being a body Egrna=aycorporate, has made a complaint to the 1,rooctlaforCommissioner in respect of a matter arising underor in relation to a regulated contract or regulatedmortgage and the Commissioner, after investigatingthe complaint, is satisfied that

(a) the complainant may, with respect to thatmatter, have a right to take proceedingsbefore a court or the Tribunal or a defence


to proceedings taken before a court or theTribunal by another person against thecomplainant in respect of that matter; and

(b) it is in the public interest that theCommissioner should take or, as the casemay be, defend those proceedings on behalfof the complainant,

the Commissioner may, with the consent in writingof the Minister and the complainant, take or defendthose proceedings on behalf of and in the name ofthe complainant.

(2) Where a complainant has given a consent tothe taking or defending by the Commissioner ofproceedings before a court or the Tribunal on behalfof the complainant, that consent is not, after theCommissioner has taken steps in those proceedings,revocable except with the concurrence of theCommissioner.

Conduct ofproceedingstaken byCommis-sioner.

42. Where, under section 41, the Commissionertakes or defends proceedings before a court or theTribunal on behalf of a complainant

(a) the Commissioner shall have the conductof those proceedings on behalf of thecomplainant, may (notwithstandinganything in any Act) appear personally orby counsel, solicitor or agent and may doall such things as are necessary or expedientto give effect to an order or decision of thecourt or the Tribunal;

(b) the Commissioner is liable to pay the costsof the complainant; and

(c) the complainant is liable to pay anyamount (other than costs for which theCommissioner is liable under paragraph(b)), that the court or the Tribunal ordersthe complainant to pay.


43. (1) Without limiting section 41, the Minister 4taeigr

or the Commissioner with the consent of the :roar-Minister, if the Minister or the Commissioner, asthe case may be, thinks that it would be in the publicinterest to do so, may intervene, and has a rightto be heard personally or by counsel, solicitor oragent, in any proceedings (other than proceedingsfor an offence) arising under the cognate Acts beforea court or the Tribunal.

(2) Where the Commissioner intervenes in anyproceedings under subsection (1), lodges anobjection under section 11 or 23 or takes or defendsproceedings in accordance with section 41 (1), itshall be presumed, unless the contrary is proved,that the Minister has consented to the intervention,the lodging of the objection or the taking ordefending of proceedings, as the case may be.

(3) The Minister or the Commissioner, onintervening under subsection (1) in any proceedings,becomes a party to the proceedings and has all therights, including rights of appeal, of such a party.

44. Where application is made to the Tribunalby a credit provider under section 86 of the CreditAct 1984, the Commissioner shall, if required so todo by the Chairman of the Tribunal before theTribunal hears the application, investigate theapplication and report to the Tribunal on the resultsof the investigation.

Investiga-tion ofapplicationto Tribunal.

PART VI-MISCELLANEOUS.

45. (1) The Governor may, by order published in Itaigaigthe Gazette, declare that the provisions of this Act, of Act.

or such of those provisions as are specified in theorder

(a) do not have effect in relation to a specifiedperson or to a specified class of persons;


(b) have effect in relation to a specified personor to a specified class of persons to suchextent as is specified;

(c) do not have effect in relation to a specifiedtransaction or matter or class of trans-actions or matters;

(d) have effect in relation to a specified trans-action or matter or class of transactions ormatters to such extent as is specified;

(e) do not have effect in relation to a specifiedtransaction or class of transactions enteredinto by a specified person or specified classof persons or in relation to specifiedassociated matters; or

(f) have effect in relation to a specified trans-action or class of transactions entered intoby a specified person or specified class ofpersons, or in relation to specified associatedmatters, to such extent as is specified.

(2) An order made under subsection (1)—

(a) may specify the period during which theorder shall remain in force;

(b) may provide that its operation is subject tosuch terms and conditions as are specifiedin the order; and

(c) may specify the circumstances under whicha person to whom the order applies is, byreason of the order, to be deemed to be anexempt credit provider.

(3) The Governor may, by order published in theGazette, revoke or vary an order made under thissection.


(4) An order in force under this section, includ-ing an order that is varied under this section, haseffect according to its tenor.

(5) A person to whom an order under this sectionapplies, including an order that is varied under thissection, shall comply with the terms and conditions(if any) to which the operation of the order issubject.

Penalty: $5 000.

46. (1) A person who contravenes or fails tocomply with a provision of this Act is guilty of anoffence against this Act.

Generalpenalty.

(2) A person who is guilty of an offence againstthis Act for which a specific penalty is not prescribedby a provision of this Act other than this subsectionis liable to a penalty not exceeding $1 000.

47. Notwithstanding anything in any Act, Limitation.

proceedings for an offence against this Act may bebrought within the period of 3 years that nextsucceeds the commission of the offence or, with theconsent of the Attorney General, at any later time.

48. Where an offence against this Act committed =rme bY

by a body corporate is proved to have been committed corporate.with the consent or connivance of any director,manager, secretary or other officer of the bodycorporate, the person, as well as the body corporate,shall be deemed to have committed that offence andis liable to be proceeded against and punishedaccordingly.

Who maytakeproceedingsfor offences.

No. 1001 Credit (Administration). [1984.

49. (1) Proceedings for an offence against thisAct or the Credit Act 1984, or for a breach of theregulations under either Act may be taken andprosecuted by any person acting with the authorityof

(a) the Minister; or

(b) a prescribed officer.

(2) An authority to prosecute purporting to havebeen signed by the Minister or a prescribed officeris evidence of that authority without proof of thesignature of the Minister or the prescribed officer.

(3) In proceedings for an offence against this Actor the Credit Act 1984, or for a breach of theregulations under either Act, the informant mayconduct his or her case personally, or by counsel orattorney, or by an agent authorised by the informantin writing.

Disposal ofProceedings.

50. (1) Proceedings for an offence against thisAct or the Credit Act 1984, shall be disposed ofsummarily before a court of petty sessionsconstituted by a stipendiary magistrate sittingalone.

(2) Proceedings for a breach of the regulationsshall be disposed of summarily before a court ofpetty sessions constituted by a stipendiarymagistrate sitting alone.

(3) A monetary penalty imposed by a court ofpetty sessions for an offence against this Act or theCredit Act 1984, shall not exceed $5 000 notwith-standing that, but for this subsection, the maximummonetary penalty that could be imposed wouldexceed $5 000.


51. (1) A certificate signed by the Registrar to Evidence.

the effect that a person specified therein was or wasnot, on a day or during a period so specified, theholder of a licence so specified is, without proof ofthe signature or of the official character of the personby whom it purports to have been signed, admissiblein evidence in any proceedings and is evidence ofthe matters so certified.

(2) A certificate signed by the Registrar to theeffect that a person specified therein was, on a dayor during a period so specified, authorised for thepurposes of section 54 or 55 is, without proof of thesignature or of the official character of the personby whom it purports to have been signed, admissiblein evidence in any proceedings and is evidence of thematters so certified.

(3) Where it is alleged in any proceedings underthis Act, or in any other proceeding in relation to amatter arising under this Act, that a credit contractis a regulated contract, it shall be presumed, unlessthe contrary is established, that the credit contractis a regulated contract.

52. Except to the extent that this Act expressly gegrg,neto.,provides otherwise, nothing in this Act modifies or saved.excludes a right or remedy that a person wouldhave had if this Act had not been enacted.

53. (1) For the purposes of section 17 of the .2piteationConsumer Affairs Act 1971, matters arising under Tirnar e rthe cognate Acts are matters relating to the interests Act 1971.

of consumers and those Acts are Acts designed toprotect the interests of consumers.

(2) The Commissioner has, in relation to theCommissioner's functions and powers under thecognate Acts, the same power of delegation as isconferred on the Commissioner by section 23 of theConsumer Affairs Act 1971, in relation to theCommissioner's functions and powers under thatAct.

Power ofentry.


54. (1) For the purpose of ascertaining whetherthe provisions of any of the cognate Acts are beingor have been complied with by a credit provider orfor the purpose of enabling the Commissioner toprepare a report for the Tribunal, the Commissioner,an authorised officer appointed under the ConsumerAffairs Act 1971, or any other person authorised inwriting in that behalf by the Commissioner may

(a) enter premises where the business of thecredit provider or the business of a personwith whom the credit provider has a tradeor tie agreement, is being carried on;

(b) require the production of records;

(c) inspect and require explanations of anyrecord; and

(d) take notes, copies and extracts of or fromany record or statement produced pursuantto this section.

(2) Where the Commissioner, or an authorisedofficer or authorised person referred to in subsection(1), requires production under that subsection of arecord that is not in writing, or is not written in theEnglish language, or is not decipherable on sight,the requirement to produce the record shall bedeemed to be a requirement to produce, in additionto the record if it is in writing, or instead of therecord if it is not in writing, a statement, written inthe English language and decipherable on sight,containing the whole of the information in therecord.

(3) A person shall not

(a) wilfully delay or obstruct the Commissioner,an authorised officer or any other personin the exercise of powers under this section;

(b) refuse or fail to produce, or conceal orattempt to conceal, any record or statementthe person is required under subsection (1)or (2) to produce;

1 4. Credit (Administration). [No. 100.

(c) being a credit provider or, where the creditprovider is a body corporate, an officer ofthe credit provider refuses or fails toanswer a question or give an explanationrelating to any such record or statementput to or required of, him or her by a personentitled to require production of the recordor statement who first informs him or herthat he or she is required and obliged bythis section to answer the question or givethe explanation; or

(d) being a credit provider or, where the creditprovider is a body corporate, an officer of thecredit provider gives to a question relatingto any record or statement an answer thathe or she knows is false or misleading orgives an explanation of any record or state-ment that he or she knows is a false ormisleading explanation.

Penalty: $2 000.

55. (1) In this section

"authorised person" means the Commissioneror a person authorised in writing by theCommissioner to exercise the powersconferred by this section on an authorisedperson;

"credit provider" includes a person who was atany time a credit provider to whom aprovision of a cognate Act applied as acredit provider.

(2) For the purpose of ascertaining whether theprovisions of any of the cognate Acts are being orhave been complied with by a credit provider, anauthorised person may, by instrument in writing,require the credit provider to produce specifiedrecords, or records of a specified class ordescription, to a specified authorised person at aspecified place at a specified time or within a specifiedperiod.

Productionof records.


(3) Where an authorised person requires produc-tion under subsection (2) of a record that is not inwriting, or is not written in the English language,or is not decipherable on sight, the requirement toproduce the record shall be deemed to be a require-ment to produce, in addition to the record if it isin writing, or instead of the record if it is not inwriting, a statement, written in the Englishlanguage and decipherable on sight, containing thewhole of the information in the record.

(4) A person shall not refuse or fail to produce anyrecord or statement in accordance with a require-ment made of the person under subsection (2).

Penalty: $2 000.

(5) An authorised person may inspect and takenotes, copies and extracts of or from any record orstatement produced pursuant to this section.

Secrecy.

(6) Nothing in this section limits the operation ofsection 55 and nothing in section 55 (1) limits theoperation of this section.

56. (1) This section applies to every person whois or has been

(a) a member of the Tribunal;

(b) a person appointed under section 32 (1);

(c) the Commissioner;

(d) an authorised person under section 54 (1)or 55 (1);

(e) the Registrar; or

(f) a member of the staff assisting the Com-missioner or the Registrar.


(2) A person to whom this section applies shallnot, either directly or indirectly, except in legal pro-ceedings or in the exercise or performance of apower, authority, duty or function under or in con-nection with the cognate Acts, the ConsumerAffairs Act 1971, the Commercial Tribunal Act 1984,or the corresponding Acts, or proposed laws, of thelegislature of the Commonwealth or of anotherState or of a Territory, make a record of, or divulgeor communicate to any person, any information con-cerning the affairs of any person acquired by theperson by reason of the person's office or employ-ment under or for the purposes of the cognate Acts.

Penalty: $2 000.

57. Where, under this Act, the Tribunal, the gnnset°nsCommissioner or the Registrar may extend a period,the Tribunal, Commissioner or Registrar, as the casemay be, may extend the period notwithstandingthat the period has elapsed.

58. (1) Where, under this Act, a document ornotice is required or permitted to be given to orserved on a person, the document or notice maybe given or served

(a) where the person is a natural person, bygiving it to or serving it personally on theperson or by sending it by post to the per-son at the person's usual or last knownplace of abode or business; or

(b) where the person is a corporation, by leav-ing it at or sending it by post to the re-gistered office of the corporation.

(2) In subsection (1), "registered office" means

(a) the office of the corporation that is theregistered office or principal office in ac-cordance with the law of the State orTerritory of the Commonwealth by orunder which the corporation is incorpor-ated;

Service ofdocuments.


(b) where the corporation is not incorporatedin Australia, an office registered under thelaw of a State or Territory of the Common-wealth as a registered office of the corpora-tion; or

(c) in the case of a corporation that has nosuch registered office or principal office, theprincipal place of business of the corpora-tion in the State or, if it has no place ofbusiness in the State, its principal placeof business in Australia.

Serviceby post. 59. For the purposes of this Act, where a docu-

ment or notice is properly addressed, prepaid andposted as a letter, the document or notice shall,unless the contrary is proved, be deemed to havebeen given to the person to whom it is addressed atthe time at which the letter would be delivered inthe ordinary course of post.

Annualreport. 60. (1) The Commissioner shall, not later than

3 months after the expiration of the period of 12months ending on 30th June in each year, preparea report on the administration of the cognate Actsduring that period of 12 months and submit thereport to the Minister for presentation to Parliament.

(2) The report referred to in subsection (1) mayform part of the report submitted to the Ministerin accordance with section 26 of the ConsumerAffairs Act 1971.

Regulations. 61. (1) The Governor may make regulations, notinconsistent with this Act, for or with respect to anymatter that by this Act is required or permitted tobe prescribed, or that is necessary or convenient tobe prescribed, for carrying out or giving effect tothis Act.


(2) The regulations may provide that the feereferred to in section 9 (2), 21 (1) or 21 (5) is to be

(a) a specified amount; or

(b) an amount calculated in a specified manner.

(3) A regulation may impose a penalty notexceeding $500 for a breach of the regulation.

(4) A provision of a regulation may

(a) apply generally or be limited in its applica-tion by reference to specified exceptions orfactors;

(b) apply differently according to differentfactors of a specified kind; or

(c) authorise any matter or thing to be fromtime to time determined, applied orregulated by a specified person or body,

or may do any combination of those things.

SCHEDULE 1. (Sec. 3.)

TRANSITIONAL PROVISIONS.

1. In this Schedule, "appointed day" means the day on rotreirpreta-which section 6 commences.

2. (1) Where an application for a licence is made andgranted before the appointed day, the licence takes effect onthat day and shall be signed and issued by the Registrar.

(2) Where an application for a licence is made beforethe appointed day but the application is not determineduntil that day or a later day, the applicant shall, subjectto clause 3, be deemed to be the holder of a licence (beinga licence of the class applied for) between the commence-ment of the appointed day and the time of the granting or,as the case may be, the refusal of the application.

Grant orrefusal ofapplicationfor licence.


(3) Where an application for a licence referred to insubclause (2) is granted, an additional fee is payable inrespect of the licence, being a fee that bears to the feepaid under section 9 (2) the same proportion as the periodbetween the commencement of the appointed day and theday on which the licence is granted bears to one year.

(4) Where an application for a licence made before theappointed day is granted or refused on or after that day, theRegistrar shall notify the applicant and any objector of thegranting or refusal and, where the application is granted andan additional fee is payable under subclause (3), givewritten notice to the licensee that, unless the amount(specified in the notice) of the additional fee is paid beforea day so specified, being a day that is not earlier than 14days after the giving of the notice, the licence will becancelled.

(5) The Registrar shall cancel the licence of a licenseewho falls to pay the fee referred to in a notice to the licenseeunder subclause (4), and such a cancellation has the sameeffect as a cancellation under section 21 (6).

(6) Where an application for a licence made before theappointed day is refused before, on or after that day, theRegistrar shall refund to the applicant so much of the feepaid under section 9 (2) as is specified by the Tribunal asappropriate to be refunded.

(7) Where, pursuant to subclause (5), a licence iscancelled, the Registrar shall refund to the former licenseean amount determined by the Tribunal, being suchproportion of the fee paid under section 9 (2) as the Tribunalconsiders appropriate having regard to the period thatelapsed between the commencement of the appointed dayand the day on which the application for the licence wasgranted.

Tribunalmay givecertaindirections.

3. If the Tribunal, upon cause shown, so directs, clause 2 (2)ceases to apply to a person to whom, but for this clause andthe direction, it would apply.

CREDIT (ADMINISTRATION) ACT 1984. - legislation.wa.gov.au

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Transcript of CREDIT (ADMINISTRATION) ACT 1984. - legislation.wa.gov.au