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Consumer Credit (Victoria) and Other
Acts Amendment Bill 2007
Introduction Print
EXPLANATORY MEMORANDUM
General
The Bill implements a number of the recommendations from the Report of
the Consumer Credit Review which was released in 2006 and subsequently
endorsed in the Government Response to the Report.
The Bill amends the Consumer Credit (Victoria) Act 1995 to enhance the
registration scheme for credit providers and require credit providers to belong
to an external dispute resolution scheme, and to allow the Director of
Consumer Affairs Victoria to determine to bring certain proceedings under
the Consumer Credit (Victoria) Code in a court rather than VCAT; amends
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 and certain provisions of the
Consumer Credit (Victoria) Act 1995; amends the Residential Tenancies
Act 1997 to provide that certain tenancy agreements known as "rent-to-buy
contracts" are to be tenancy agreements even if the rental term exceeds
5 years; and amends the Sale of Land Act 1962 to re-enact with amendments
the provisions relating to terms contracts.
The Bill also repeals the Credit Reporting Act 1978 and re-enacts the
provisions of that Act relating to the correction of errors in credit records in
the Fair Trading Act 1999. The Bill also makes amendments to other Acts
in relation to owners corporations.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill. The main purposes of the Bill
are--
· to amend the Consumer Credit (Victoria) Act 1995 in
relation to the registration of credit providers and to
allow certain proceedings under the Consumer Credit
561108 1 BILL LA INTRODUCTION 5/12/2007
(Victoria) Code to be brought in a court rather than
VCAT if the Director of Consumer Affairs Victoria so
determines;
· 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 and Division 5 of
Part 4A of the Consumer Credit (Victoria) Act 1995;
· 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;
· 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;
· to amend the Sale of Land Act 1962 to re-enact with
amendments the provisions relating to terms contracts;
· to repeal the Credit Reporting Act 1978.
Clause 2 provides that the Bill, except for sections 4 to 24 and Parts 5
and 6, will come into operation on the day after the day on which
it receives the Royal Assent. If a provision does not come into
operation before 1 July 2009, it will come into operation on that
date.
· Sections 4 to 24 will come into operation on a day or
days to be proclaimed. These provisions insert the
amendments in relation to the registration scheme for
credit providers and new requirements for registered
credit providers to be members of an external dispute
resolution scheme. Their commencement is deferred in
order to allow the Business Licensing Authority to make
the necessary administrative changes to the current
registration scheme for credit providers and for
currently registered credit providers to become members
of an approved external dispute resolution scheme.
· Part 5 will come into operation on a day to be
proclaimed in order for advice of the changes to be
disseminated to legal drafters. Part 5 brings certain
tenancy agreements, known as "rent-to-buy contracts",
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under the operation of the Residential Tenancies
Act 1997.
· Part 6 will come into operation on a day to be
proclaimed in order for the provisions to include
consequential amendments which have been made in
the Conveyancers Act 2006 and which has not yet
come into operation. Part 6 re-enacts the terms
contracts provisions in the Sale of Land Act 1962.
PART 2--CONSUMER CREDIT (VICTORIA) ACT 1995
Clause 3 amends section 8(1) of the Consumer Credit (Victoria)
Act 1995 to provide that the Director of Consumer Affairs
Victoria may determine to bring proceedings under a provision of
the Consumer Credit (Victoria) Code referred to in subsection
(1)(a) in a court instead of the Victorian Civil and Administrative
Tribunal if the Director considers that it is in the public interest to
do so and that given the nature and circumstances of the case, it
would be more appropriately dealt with by a court.
Clause 4 inserts new section 9A into the Consumer Credit (Victoria)
Act 1995. This section inserts new definitions of approved EDR
scheme, associate, disqualifying offence, domestic partner,
Register, relevant business, relevant licence or registration and
spouse for the purposes of Part 4 of the Act.
Clause 5 amends section 12(1)(c) of the Consumer Credit (Victoria)
Act 1995 to update a reference to the Life Insurance Act 1945 of
the Commonwealth. The clause also repeals section 12(1)(f) of
the Act to remove the exemption for a holder of a "pawnbroker's
business premises licence" under the Second-Hand Dealers and
Pawnbrokers Act 1989 from the requirement in section 11 of
the Act that a person who provides credit under credit contracts
must be registered as a credit provider. The reference to a
pawnbroker's business premises licence is out of date and
unnecessary as the Consumer Credit (Victoria) Code already
provides for an exemption for pawnbrokers providing credit in
the ordinary course of a pawnbroking business.
Clause 6 inserts new sections 12A and 12B into the Consumer Credit
(Victoria) Act 1995. Section 12A provides that a registered
credit provider must not carry on business as a credit provider
unless the credit provider is a member of an approved external
dispute resolution scheme. Failure to comply with this
requirement is an offence and subject to a maximum
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penalty of 120 penalty units in the case of a natural person
and 600 penalty units in the case of a body corporate.
Section 12B sets out the requirements for a natural person or
body corporate to be eligible for registration as a credit provider.
A person will not be eligible for registration if the person, or, if
the person is a body corporate, a director--
· is a represented person under the Guardianship and
Administration Act 1986;
· is an insolvent under administration;
· has been convicted or found guilty of a disqualifying
offence within the preceding 5 years. This ground for
ineligibility also applies where an associate of the
person or of a director has been convicted or found
guilty of a disqualifying offence;
· has had a relevant licence or registration suspended or
cancelled at any time in the preceding 5 years or the
person is disqualified from carrying on a relevant
business or has been disqualified at any time in the
preceding 5 years. This ground for ineligibility also
applies where an associate of the person or of a director
has had a relevant licence suspended or cancelled or is
otherwise disqualified from carrying on a relevant
business;
· was a director of a body corporate at the time that body
corporate was convicted or found guilty of a
disqualifying offence within the preceding 5 years.
If the person is a body corporate, the person will also be
ineligible for registration if the person--
· is an externally-administered body corporate;
· has been convicted or found guilty of a disqualifying
offence within the preceding 5 years;
· has had a relevant licence or registration suspended or
cancelled at any time in the preceding 5 years or the
person is disqualified from carrying on a relevant
business or has been disqualified at any time in the
preceding 5 years.
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Clause 7 amends section 13(1) to substitute "Authority" for the word
"Registrar" in that section. The clause also amends section 13(2)
to include further information which an applicant for registration
must include on their application form. The clause also inserts
new sections 13(2A) to 13(2D) which require an applicant to
certify on the application that they are not ineligible to be
registered according to the criteria set out in section 12B and that
the application be accompanied by evidence as to the identity of
the applicant or if the applicant is a body corporate, the director
making the application on behalf of the body corporate. If the
applicant is a body corporate, the application must be
accompanied by a statement by one of the directors certifying as
to the eligibility of the body corporate.
Clause 8 repeals section 13(4) of the Consumer Credit (Victoria)
Act 1995. This section provides that an applicant give the
Registrar such further particulars that the Registrar requires in
relation to an application. This requirement will now be covered
in new section 14B.
Clause 9 inserts new sections 14A, 14B, 14C and 14D into the Consumer
Credit (Victoria) Act 1995. Section 14A requires an applicant
for registration to give the Business Licensing Authority notice of
any material change to the information provided in support of the
application within 7 days after becoming aware of the change.
Failure to notify the Authority of a material change is subject to a
maximum penalty of 60 penalty units.
Section 14B sets out the powers of the Business Licensing
Authority in relation to the consideration of an application.
These include the power to conduct any inquiries it thinks fit,
require further information from the applicant and require the
applicant to provide consent to disclosure of information to allow
the Authority to perform a check on the applicant or the
information provided by the applicant. The Authority is not
required to conduct an oral hearing to determine whether to
register an applicant. The Authority may refuse to register an
applicant if the applicant does not comply with a request within
the specified time.
Section 14C provides that the Authority may refer an application
to the Director of Consumer Affairs Victoria, who must make
any inquiries in relation to the application that the Director
considers appropriate and must give the Authority a report on
the result of those inquiries. A report may include any
recommendations that the Director considers appropriate.
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Section 14D provides that the Authority may refer the application
to the Chief Commissioner of Police, who must make any
inquiries in relation to the application that the Chief
Commissioner considers appropriate and must give the Authority
a report on the result of those inquires. A report may include
recommendations.
Clause 10 amends section 15(1) of the Consumer Credit (Victoria)
Act 1995 to provide that the Business Licensing Authority must
register an applicant as a credit provider if it is satisfied that the
applicant is not ineligible to apply for registration under
section 12B and the applicant complies with the requirements
in section 13(1). A new section 15(4) also requires the Authority
to notify the applicant in writing within 14 days, if the Authority
decides not to register the applicant.
Clause 11 substitutes a new section 19 in the Consumer Credit (Victoria)
Act 1995 to provide that the Authority must keep a register, to be
known as the Register of Credit Providers, which must be kept in
a form and, made available in a form, approved by the Authority.
Subsection (2) sets out the purposes of the Register.
Subsection (4) lists the information that the Register must contain
for each credit provider. Subject to the Public Records
Act 1973 the Registrar may remove information from the
Register if the information has been on the Register for at least
12 years and, in the opinion of the Registrar, it is no longer
necessary for the information to remain on the Register.
Clause 12 amends section 20 of the Consumer Credit (Victoria) Act 1995
to provide that a person may inspect the Register and make
copies of information in the Register on payment of any
prescribed fee.
Clause 13 amends section 21 of the Consumer Credit (Victoria) Act 1995
to provide that a registered credit provider must notify the
Registrar of any material changes within 7 days after the change
occurs. A material change includes a change to any information
contained in the Register and any prescribed changes.
Clause 14 amends section 24 of the Consumer Credit (Victoria) Act 1995
to insert a new subsection (2B) which provides that the annual
statement required under the section must include an affirmation
by the registered credit provider that the credit provider is not
ineligible for registration on any ground set out in section 12B.
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Clause 15 inserts a new section 24A into the Consumer Credit (Victoria)
Act 1995 which sets out the powers of the Business Licensing
Authority in relation to an annual statement lodged by a credit
provider under section 24. The Authority may conduct any
inquiries it thinks fit, require further information from the credit
provider and require the credit provider to provide any consent to
disclosure of information that the Authority requires to perform a
check on the credit provider or any information included in the
statement. If the credit provider does not comply with a request
by the Authority for further information or consent to disclosure,
the Authority must issue a notice requiring provision of the
information or consent. If the credit provider fails to provide this
within the time specified in the notice, the credit provider's
registration will be cancelled.
Clause 16 inserts new sections 27A, 27B and 27C into the Consumer
Credit (Victoria) Act 1995. Section 27A(1) sets out the
circumstances in which a person's registration is automatically
cancelled. Subsection (2) sets out the circumstances in which
a person's registration will be automatically cancelled 30 days
after the event.
Section 27B provides that a person who would otherwise be
ineligible under some of the grounds set out in section 12B or a
person whose registration would otherwise be cancelled under
sections 27A(2) or 27A(3) may apply to the Business Licensing
Authority for permission to be registered or continue to be
registered as the case may be. The Authority may give its
permission if it is satisfied that it is not contrary to the public
interest to do so. In considering a permission application, the
Authority may conduct any inquiries it thinks fit, require the
applicant to provide further information and seek advice and
information from any other person or body as it thinks fit.
The Authority is not required to conduct a hearing in determining
the permission application.
Section 27C provides that, in giving its permission under
section 27B, the Authority may impose any conditions it
considers appropriate to ensure the ongoing protection of the
public interest. A failure to comply with a condition is an
offence subject to a maximum penalty of 100 penalty units.
Clause 17 amends section 30 of the Consumer Credit (Victoria) Act 1995
by repealing the grounds for inquiry currently set out in
sections 30(3)(g), 30(3)(h) and 30(3)(j). These grounds are now
covered in section 27A and will result in automatic cancellation
of the credit provider's registration. The clause also amends
section 30(5) to substitute a redundant reference to the Financial
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Institutions (Victoria) Code with a reference to "an Australian
financial services licence issued under Part 7.6 of the
Corporations Act".
Clause 18 substitutes a new section 35 in the Consumer Credit (Victoria)
Act 1995 which provides for certain persons to continue to carry
on the business of a registered credit provider for a period of
30 days where the credit provider dies, becomes insolvent,
becomes a represented person or, in the case of a body corporate,
becomes externally administered. The person who is authorised
to carry on the business under this section may apply to the
Authority for permission to carry on the business for a longer
period. The Authority may grant an application if it is satisfied
that it is not contrary to the public interest to do so. In granting
its permission, the Authority may impose any limits or conditions
it considers appropriate to ensure the ongoing protection of the
public interest.
Clause 19 inserts a new section 35A into the Consumer Credit (Victoria)
Act 1995 to provide that any person whose interests are affected
by a decision of the Authority under Part 4 of the Act may apply
to the Victorian Civil and Administrative Tribunal for a review of
the decision.
Clause 20 amends sections 14, 18, 26(5), 31A and 36 of the Consumer
Credit (Victoria) Act 1995 to increase the maximum
penalty units applying to offences under those sections.
Clause 21 substitutes the word "Authority" for the word "Registrar" in
sections 23 and 27 of the Consumer Credit (Victoria) Act 1995.
Clause 22 repeals section 45(2) of the Consumer Credit (Victoria) Act
1995. Section 45(2) is a transitional provision that provided for
particulars of credit providers registered under the Credit
(Administration) Act 1984 to be entered in the Register on
commencement of the Consumer Credit (Victoria) Act 1995.
This provision is now spent and can be repealed.
Clause 23 repeals Part 7 of the Consumer Credit (Victoria) Act 1995.
This Part contains amendments to other Acts.
These amendments are wholly in operation. Part 7 is spent
and can be repealed.
Clause 24 inserts new sections 51 to 55 in the Consumer Credit (Victoria)
Act 1995. These sections are transitional provisions.
Section 51 provides that a person who was registered as a credit
provider immediately before the commencement of clause 6 of
this Bill continues to be registered as a credit provider under
8
Part 4 after that commencement subject to the requirements of
sections 12B and 27A.
Section 52 provides that a person who was registered as a credit
provider immediately before the commencement of clause 6 of
this Bill must, within 14 days of that commencement, notify the
Authority in writing of the name and contact details of the EDR
scheme of which the person is a member.
Section 53 provides that applications made under section 13
or section 35 which have not been determined before the
commencement of clause 7 or clause 18 of this Bill (as the case
may be) must be determined in accordance with the Consumer
Credit Victoria) Act 1995 as in force immediately before that
commencement. Subclause (2) provides that if the application is
made under section 13, the applicant must notify the Authority of
the EDR scheme before the application is determined.
Section 54 preserves any information contained in the Register of
Credit Providers immediately before the commencement of
clause 11 of this Bill. That information continues to form part of
the Register after that commencement date.
Section 55 provides that section 35A only applies to decisions
made by the Authority after the commencement of clause 19 of
this Bill.
Clause 25 repeals Schedule 1 to the Consumer Credit (Victoria)
Act 1995.
PART 3--CREDIT (ADMINISTRATION) ACT 1984
Clause 26 inserts new sections 13 and 14 into the Credit (Administration)
Act 1984. Section 13 provides that the Director of Consumer
Affairs Victoria may institute or continue proceedings on behalf
of, or defend proceedings brought against, a debtor, mortgagor,
guarantor or lessee under a consumer lease in respect of any
"consumer credit matter". The Director must be satisfied that it is
in the public interest to institute, continue or defend proceedings
on behalf of the person or persons. A "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.
Section 14 provides for the conduct of proceedings and the
payment of costs or compensation where the Director institutes,
continues or defends proceedings on behalf of a person under
section 13.
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PART 4--FAIR TRADING ACT 1999
Clause 27 inserts a new Part 5A into the Fair Trading Act 1999 which
re-enacts certain provisions from the Credit Reporting Act
1978. New section 93A sets out definitions of consumer, credit
report and credit reporting agent for the purposes of Part 5A.
Section 93B provides that a consumer who disputes the accuracy
or completeness in relation to the consumer of any information
compiled by a credit reporting agent may serve a notice
requesting the agent to correct the information. The credit
reporting agent must, within 30 days of the notice, inform the
consumer whether or not the agent has made the amendment,
supplement or deletion from the information recorded in relation
to the consumer. The credit reporting agent must also notify all
persons who have been supplied with information relating to the
consumer of the amendment, supplement or deletion.
Section 93C provides that where a credit reporting agent fails to
make the amendment requested by the consumer or the consumer
is not satisfied with the amendment, supplement or deletion, the
consumer may apply to the Magistrates' Court for an order
requiring the credit reporting agent to make any or any further
amendment, supplement or deletion from the information.
Section 93D provides that the Court may order a credit reporting
agent to amend, supplement or delete any item of information
concerning the consumer that the Court is satisfied is inaccurate,
misleading or irrelevant to the purpose for which the information
is kept or which should be amended, supplemented or deleted by
reason of effluxion of time and to give any person to whom the
agent has provided information with respect to the consumer, full
particulars of the amendment, supplement or deletion. A credit
reporting agent who does not comply with an order under new
section 93D commits an offence and is liable to the penalty set
out in the section.
PART 5--RESIDENTIAL TENANCIES ACT 1997
Clause 28 amends section 6 of the Residential Tenancies Act 1997 to
provide that, despite section 6(1), the Act applies to a tenancy
agreement, even if the initial term of the contract exceeds 5 years,
where the tenant has been given a right or option to purchase the
premises and the contract is entered into after the commencement
of clause 28 of this Bill. These types of tenancy agreements are
also known as "rent-to-buy contracts".
10
PART 6--SALE OF LAND ACT 1962
Clause 29 amends the definition of terms contract in section 2(1) of the
Sale of Land Act 1962. The clause also repeals sections 2(3)
and 2(4) of that Act. The definition of terms contract is now set
out in section 29A of the Act. Section 2(3) is a transitional
exemption provision and is no longer required. Section 2(4) has
been re-enacted in new section 29A.
Clause 30 repeals sections 3 to 7 of the Sale of Land Act 1962.
Sections 3, 4, 6 and 7 are re-enacted in new Division 4 of Part I
of the Act. Section 5 has been repealed as it has no ongoing
operation.
Clause 31 substitutes a new section 14 in the Sale of Land Act 1962.
The new section 14 reflects the current section 14(3) of the Act
and provides that any agreement under which a person purports
to waive a right they may have under the Act to avoid a contract
is void. Sections 14(1), 14(2) and 14(4) are re-enacted in the new
Division 1 of Part I of the Act as these subsections only relate to
terms contracts.
Clause 32 substitutes a new section 29 in the Sale of Land Act 1962 which
provides that nothing in Division 3 of Part I of the Act affects the
operation of new section 29O. Division 3 of Part I regulates the
payment and handling of deposits payable under a contract of
sale.
Clause 33 inserts a new Division 4 of Part I into the Sale of Land Act 1962
which re-enacts the terms contracts provisions and groups them
together in one Division.
Section 29A(1) sets out the definition of a terms contract.
This definition is based on the definition currently in
sections 2(1) and 2(4) of the Act. Subsection (2) also defines
deposit and final payment for the purposes of the definition in
subsection (1).
Section 29B re-enacts the current section 3(1) of the Act and sets
out what types of terms contracts are prohibited. The section
prohibits persons from selling land under a terms contract if they
do not have the type of interests in the land as set out in the
section.
Section 29C re-enacts the current section 3(2) and provides that a
person will not be prevented from selling land under a terms
contract by section 29B if they have the prior consent of an
arbitrator to enter the contract or the contract is of a prescribed
class in accordance with the regulations.
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Section 29D re-enacts the current sections 3(3) and 3(4) and
sets out when a person is considered to be presently entitled to
become the registered proprietor of an interest in land for the
purposes of section 29B(2).
Section 29E re-enacts the current sections 3(5) and 3(6) and
provides that a failure to comply with section 29B because of a
mistake or mis-statement in the contract in, or with respect to, the
description, measurement or area of the land is to be disregarded
unless it is a material mistake or mis-statement. Subsection (2)
provides that any dispute as to whether a failure is to be
disregarded under subsection (1) may be determined by an
arbitrator. Subsection (3) defines material mistake or
mis-statement.
Section 29F re-enacts the current sections 14(1) and 14(4) and
provides for a purchaser's right to avoid a terms contract and
recover any money paid under that contract where the contract
has been entered into in contravention of the Act. Subsection (2)
provides that the contract is not voidable by the purchaser where
a court is satisfied that the vendor has acted honestly and
reasonably and ought fairly to be excused for the contravention
and the purchaser is substantially in as good a position as if the
Act had been complied with. Subsection (3) provides that where
a purchaser avoids a terms contract, the purchaser is liable to pay
an occupation rent for the period during which the purchaser was
in actual possession of the land or entitled to receipt of the rents
and profits of the land.
Section 29G re-enacts the current section 14(2) and provides that
a provision in a terms contract or any other document which
excludes, modifies or restricts any right of the purchaser
conferred by the Act or under the terms contract is void.
Section 29H re-enacts the current sections 4(1) and 4(3) and
provides that a purchaser who is not in default under the terms
contract may, at any time after acceptance of title and before
payment in full of the purchase price, serve a notice on the
vendor requiring the vendor to convey or transfer the land to
the purchaser freed and discharged from all mortgages.
The purchaser's right to call for a transfer under this section is
conditional upon the purchaser executing a mortgage in favour of
the vendor or any other person the vendor requires to secure the
payment of all money owing under the contract. Subsection (5)
sets out the circumstances in which a vendor may comply with
a requirement in this section and transfer the land subject to an
existing mortgage as long as the terms and conditions of that
mortgage are no more onerous than the terms and conditions
under the contract.
12
Section 29I re-enacts the current sections 4(2) and 4(2A) and sets
out what the mortgage required under section 29H to be executed
by the purchaser is to provide.
Section 29J re-enacts the current section 4(4) and provides for the
consequences of a failure by the vendor, without lawful excuse,
to comply with a notice served by the purchaser under
section 29H. 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. The vendor is also guilty of an offence
and subject to the penalty set out in the section.
Section 29K re-enacts the current section 4(5) and provides that
this subdivision applies despite anything in the Trustee Act 1958
or any other Act except for the Charter of Human Rights and
Responsibilities.
Section 29L re-enacts the current section 4(6) and provides that,
in the absence of agreement between the parties, an arbitrator
may determine any question as to the sufficiency of any
instrument of transfer, conveyance or mortgage.
Section 29M re-enacts the current sections 6(1) and 6(2) and sets
out the restrictions on a vendor from selling land under a terms
contract where the land is already subject to a mortgage.
Section 29N re-enacts the current section 6(3) and provides that
if a terms contract is entered into in contravention of section 29N
the contract is voidable by the purchaser at any time before
completion of the contract and the vendor is guilty of an offence
and subject to the maximum penalty set out in the section.
Section 29O re-enacts the current section 6(4) and sets out the
circumstances in which section 29M will not apply, namely
where the contract provides that any mortgage affecting the land
will be discharged before the purchaser becomes entitled to
possession or to the receipt of the rents and profits under the
contract and the deposit and all other money payable under the
contract are to be applied towards the discharge of the mortgage.
Subsection (2) provides a right for the purchaser to avoid the
contract and recover all money paid under the contract where the
contract provides for the matters set out in subsection (1) and the
mortgage is not discharged within 90 days of the making of the
contract.
Section 29P re-enacts the current section 7(1) and prohibits a
vendor under a terms contract from mortgaging the land which is
subject to the contract.
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Section 29Q re-enacts the current section 7(2) which provides
that a vendor may serve a notice on the purchaser requiring the
purchaser to take a transfer or conveyance of the land subject to
the terms contract and, at the vendor's expense, execute any
mortgage in favour of the vendor and others that the vendor may
require. Subsection (2) provides that the obligations of the
purchaser under the mortgage must not be more onerous to the
purchaser than the purchaser's obligations under the terms
contract.
Section 29R re-enacts the current section 7(3) and provides that
where the vendor gives the notice under section 29Q, the vendor
must advance to the purchaser if the purchaser requires, an
amount equal to the stamp duty payable on the transfer and that
amount advanced will be added to the principal sum secured by
the mortgage.
Section 29S re-enacts the current section 7(4) and sets out the
consequences where land is mortgaged in contravention of
section 29P, 29Q or 29R. Subsection (1) provides for the
purchaser's right to avoid the contract and provides that the
vendor is guilty of an offence and liable to the penalty set out in
the section. Subsection (1)(c) also sets out the consequences for
a mortgagee who has actual or constructive notice of the interest
of the purchaser under the terms contract. Subsection (2)
provides for the consequences where the land subject to the terms
contract has been sold pursuant to the exercise of the mortgagee's
power of sale.
Section 29T re-enacts the current section 7(5) and sets out the
consequences of a failure by the purchaser to comply with a
notice under section 29Q without lawful excuse. The purchaser
is deemed to have breached a condition of the contract and the
vendor is entitled to all civil remedies for that breach.
The purchaser is also guilty of an offence and subject to the
penalty set out in the section.
Section 29U re-enacts the current section 7(6) and provides that,
in the absence of agreement between the parties, an arbitrator
may determine any question as to the sufficiency of any transfer,
conveyance or mortgage submitted pursuant to Subdivision 4.
Section 29V re-enacts the current section 7(7) and sets out the
circumstances where a mortgagee will be deemed not to have
constructive notice of the interest of the purchaser under a terms
contract for the purposes of section 29T. Nothing in this section
limits the operation of section 42(2)(e) of the Transfer of Land
Act 1958.
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Section 29W re-enacts (with modifications) the current
section 33 and sets out the circumstances in which a legal
practitioner will be restricted from acting for both a vendor
and purchaser under a terms contract.
Clause 34 repeals section 33 of the Sale of Land Act 1962 as this section is
re-enacted in new section 29W.
Clause 35 is a statute law revision item and updates the reference to the
century in Schedule 1 to the Sale of Land Act 1962.
PART 7--AMENDMENTS AND REPEALS
Clause 36 amends section 6(a)(iv) of the Business Licensing Authority
Act 1998 to include a reference to the Owners Corporations
Act 2006.
Clause 37 amends the Subdivision Act 1988 as follows--
· section 27E(1) is amended to provide for owners
corporations' rules to be lodged with the Registrar of
Titles in a document accompanying the plan of
subdivision;
· new subsections (2) to (5) are inserted into section 27H
to allow an owners corporation, by special resolution, to
apply to the Registrar of Titles to alter its purposes; or,
if there is a special resolution of the members of both a
limited owners corporation and an unlimited owners
corporation, to allow the owners corporations to apply
to the Registrar of Titles 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; and
· section 32AI(1)(c) is amended to provide that it is 10%
of the lots that are the subject of the relevant
consolidation, subdivision or alteration that are referred
to, rather than 10% of all of the lots in the registered
plan.
Clause 38 amends the Transfer of Land Act 1958 as follows--
· new section 98CA(2)(ca) is inserted to provide that an
application to cancel a plan of building subdivision is to
be accompanied by the relevant owners corporation
documents;
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· new section 98CA(3) is inserted to define owners
corporation documents to mean the documents required
under Part 5 of the Subdivision Act 1988 to accompany
a plan of subdivision;
· sections 98CB(2) and 98CB(4) are amended to also
refer to owners corporation documents;
· section 98D(2) is amended to change all references to
"body corporate" to "owners corporation".
Clause 39 repeals the Credit Reporting Act 1978.
Clause 40 repeals this Act on 1 July 2010. As suggested by the Scrutiny of
Acts and Regulations Committee, all amending Acts now contain
an automatic repeal provision, which will save the time and
expense of having to repeal amending Acts in statute law revision
Bills. The repeal of this Act does not affect in any way the
operation of the amendments made by this Act (see section 15(1)
of the Interpretation of Legislation Act 1984).
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