Victorian Current Acts Victorian Current ActsS. 85(1) amended
by No. 52/1998
s. 24(1).
(1) Where, by reason of a contravention of or a failure to comply with this Act or the Credit (Administration) Act 1984 by a credit provider, a debtor is not liable to pay to the credit provider under a regulated contract an amount that, but for the contravention or failure, he would have been liable to pay under the contract, the credit provider may apply to the Tribunal for an order increasing the liability of the debtor to the credit provider.
S. 85(2) amended by No.
52/1998
s. 24(1).
(2) Where an application is made to the Tribunal under this section in relation to a regulated contract, the Tribunal, after consideration of the relevant circumstances, including the conduct of the credit provider and the debtor and the loss or damage (if any) suffered by the debtor—
(a) in the case of a credit sale contract or a loan contract and a contravention of or failure to comply with the Credit (Administration) Act 1984 —
(i) may, where it is satisfied that the contravention or failure has occurred and ought reasonably to be excused—determine that the debtor is liable to pay the amount financed under the contract and the whole or such part of the credit charge as it determines; or
(ii) may, where it is satisfied that the contravention or failure has occurred but ought not to be excused—determine not to increase the liability of the debtor or determine that the debtor is liable to pay the whole or such part as it determines of the amount financed under the contract and the whole or such part of the credit charge as it determines;
(b) in the case of a regulated continuing credit contract and a contravention of or a failure to comply with the Credit (Administration) Act 1984 —
(i) may, where it is satisfied that the contravention or failure has occurred and ought reasonably to be excused—determine that the debtor is liable to pay the whole or such part of the amount owing or the credit charge as it determines; or
(ii) may, where it is satisfied that the contravention or failure has occurred but ought not to be excused—determine not to increase the liability of the debtor or determine that the debtor is liable to pay the whole or such part of the amount owing or the credit charge as it determines; and
(c) in the case of a regulated contract and a contravention of or failure to comply with this Act by a credit provider may, where it is satisfied that the contravention or failure has occurred—determine not to increase the liability of the debtor or determine that the debtor is liable to pay the whole of such part of the credit charge under the contract as it determines.
S. 85(3) amended by No.
52/1998
s. 24(1).
(3) Where, under this section the Tribunal determines the amount that a debtor is liable to pay after a contravention of or a failure to comply with this Act or the Credit (Administration) Act 1984 by a credit provider, the Tribunal shall ensure that, in determining that amount, the amount that the debtor would have been liable to pay but for the contravention or failure is reduced by an amount that is not less than the amount of loss or damage (if any) suffered by the debtor as a result of the contravention or failure.
S. 85(4) amended by No.
52/1998
s. 24(1).
(4) Where, under this section, the Tribunal determines the liability of the debtor under a regulated contract in consequence of a contravention of or a failure to comply with this Act or the Credit (Administration) Act 1984 by the credit provider, the liability of the debtor to the credit provider under the contract is the liability determined by the Tribunal instead of the liability that, but for the determination, the debtor would have had to the credit provider under the contract.
S. 85(4A) inserted by No. 34/1991 s. 6.
(4A) The Tribunal may, when making a determination under this section of the amount that a debtor is liable to pay, give the parties to the proceedings such directions as the Tribunal considers appropriate relating to the payment of the amount owed by the debtor or by the credit provider as a result of the determination.
S. 85(4B) inserted by No. 34/1991 s. 6.
(4B) A determination made by the Tribunal under this section of the liability of a debtor has effect only in respect of the contravention or failure to which the determination relates.
(5) Nothing in this section affects the liability of a person to be convicted of an offence under this Act or the Credit (Administration) Act 1984 .
S. 85(6) inserted by No. 41/1995 s. 52.
(6) The provisions of this section are subject to the provisions of section 86A and, in particular, subsection (3) of this section does not apply to the determination of an amount under subsection (1) of that section.
S. 85A inserted by No. 34/1991 s. 7.