Credit (Savings and Transitional) Regulation 1984

Currency of version
Current version for 6 July 2009 to date (accessed 8 November 2009 at 12:49).
Legislation on this site is usually updated within 3 working days after a change to the legislation.

1 Name of Regulation

This Regulation may be cited as the Credit (Savings and Transitional) Regulation 1984.

2 Commencement

This Regulation shall take effect on and from the day on which Part 3 of the Act commences.
Editorial note. Part 3 (sec 48 excepted) of the Act commenced on 28.2.1985—see Gazette No 178 of 21.12.1984, p 6297.

2A Application of Regulation

This Regulation applies only to credit contracts and other matters to which the Act applies, as referred to in sections 19A and 19B of the Act.

3 Definitions

(1) In this Regulation, the Act means the Credit Act 1984.
(2) A reference in this Regulation to a form is a reference to a form in Schedule 1.
(3) Where a form suggests or requires the insertion of information in a blank space, that form shall be a form in compliance with this Regulation only when each item of information is inserted as suggested or required.
(4) Notwithstanding that a form includes the words “an independent body”, the substitution of the words “the Commercial Tribunal of New South Wales” for the words “an independent body” when using the form is not a failure to comply with this Regulation.

3A Prescribed account charges

For the purposes of the definition of account charge in section 5 (1) of the Act, the amount of:
(a) $150 is prescribed in relation to paragraph (a) of that definition,

(b) $90 is prescribed in relation to paragraph (b) of that definition.

4 Exclusion from definition of “credit sale contract”

A contract is not a credit sale contract within the meaning of section 5 (1) of the Act, and a contract is not a continuing credit contract in relation to the provision of credit as referred to in section 48 (2) (a) (i) of the Act, where, under or in relation to the contract:
(a)  a charge is not made or cannot be made for the provision of credit, and

(b)  the amount paid or payable by the debtor does not exceed the cash price of the goods or services within the meaning of paragraph (b) of the definition of cash price in section 5 (1) of the Act.

(c)–(e)  (Repealed)

5 Goods prescribed as farm machinery

The following goods are prescribed as farm machinery for the purposes of section 5 (1) of the Act:
(a) a boat within the meaning of the Fisheries and Oyster Farms Act 1935 that is used or intended to be used for the taking of fish within the meaning of that Act,

(b) fishing gear within the meaning of the Fisheries and Oyster Farms Act 1935.

6 Statutory rebate in relation to prescribed insurance charges

For the purposes of paragraph (b) of the definition of statutory rebate in section 5 (1) of the Act:
(a)  the prescribed insurance charges are:
(i)  amounts referred to in clause 1 (e) (iv), (v), (vi) and (vii) of Schedule 2 to the Act,

(ii)  amounts referred to in clause 1 (b) (iii), (iv), (v) and (vi) of Schedule 4 to the Act, and

(iii)  amounts referred to in clause 1 (k) (iii), (iv), (v) and (vi) of Schedule 7 to the Act, and

(b)  the prescribed manner of ascertaining the statutory rebate is by applying the following formula:

where:
Y is the amount of the statutory rebate.
P is the amount of insurance charges.
S is the number of whole months in the unexpired portion of the period for which insurance was agreed to be provided.
T is the number of whole months for which insurance was agreed to be provided.

6A Annual percentage rate

(1) For the purposes of section 5 of the Act, the annual percentage rate for the purposes of the Act is 8 per centum.
(2) The annual percentage rate prescribed by this clause applies in respect of:
(a) loan contracts entered into on or after the commencement of this clause, and

(b) continuing credit contracts, whether entered into before or after the commencement of this clause,
but not to loan contracts entered into before the commencement of this clause.
(3) This regulation does not affect the operation of the Act in respect of loan contracts entered into before the commencement of this clause.

7 Transfer of proceedings from Tribunal to court

Where proceedings are to be transferred pursuant to section 6 (4) of the Act to a court that is not empowered to make rules in respect of the transfer, the Registrar of the Tribunal shall:
(a)  prepare and certify a copy of the record of the proceedings,

(b)  file the copy in the office of the Registrar, and

(c)  deliver, or cause to be delivered, the whole of the record to the court.

8 Prescribed method for calculation of accrued credit charge

(1) For the purposes of section 11 (2) (c) of the Act, an applicable method is followed where the amount of the credit charge which has accrued at a particular time is calculated by adding together the amounts ascertained by applying the monthly percentage rate to the unpaid monthly balances (being monthly balances up to that time, including the monthly balance for the month in which the accrued credit charge is calculated):
(a)  in the case of a credit sale contract—of the amount financed, or

(b)  in the case of a loan contract—of the amount financed other than any part of the amount agreed under the contract to be lent that has not been lent at that time.

(2) In subclause (1):
(a)  monthly percentage rate means the rate determined by dividing the annual percentage rate by 12, and

(b)  monthly balances means monthly balances obtained by application of the actuarial method.

(3) For the purposes of section 11 (2) of the Act, an applicable method for calculating the amount of the credit charge which has accrued at a particular time is by application of the formula set out in Schedule 1 to the Act, that Schedule being, for the purposes of that application, read and construed as if it has been amended:
(a)  by omitting from clause 3 (b) the word “and”,

(b)  by inserting after clause 3 (c) the following word and paragraph:

, and
(d)  intervals shall be deemed to be equal if all intervals except the first are monthly intervals, the amount financed is provided on the 29th, 30th or 31st day of a month and the first instalment is payable on the first day of the month that immediately follows the end of the month that next succeeds the month in which the amount financed is provided.

9 Form of mortgage of goods

For the purposes of section 13 (3) (f) of the Act, the prescribed terms and conditions are those contained in Form 1.

10 Notice for credit sale and loan contracts

(1) For the purposes of section 32 (1) of the Act, Form 2 is the prescribed notice.
(2) For the purposes of section 32 (2) of the Act, Form 3 is the prescribed notice.
(3) For the purposes of section 32 (1) or 32 (2) of the Act, a notice is in the prescribed position if it is immediately above the place where the debtor is intended to sign.

11 Statement for credit sale and loan contracts

For the purposes of section 34 of the Act, Form 4 is the prescribed statement.

12 Notice for add-on contracts

For the purposes of section 37 (3) (c) of the Act, Form 5 is the prescribed notice.

13 Applicable method of determining annual percentage rate

For the purposes of section 38 (b) (iii) of the Act, each method specified in Schedule 2 is an applicable method.

14 Unilateral variation of credit sale and loan contracts

For the purposes of section 41 (1) of the Act, the prescribed period is 7 clear days.

14A Prescribed charges in relation to continuing credit contracts

(1) For the purposes of sections 53 and 54 of the Act, the following charges are prescribed in relation to a continuing credit contract:
(a)  fees payable for registration of a mortgage relating to the contract,

(b)  fees payable for registration of the discharge of a mortgage in force before the relevant date,

(c)  fees payable to the Registrar-General for searching records,

(d)  stamp duty payable in relation to a mortgage relating to the contract,

(e)  stamp duty payable in relation to a contract of guarantee, being a contract of guarantee in respect of the obligations of the debtor under the contract,

(f)  fees payable for lodgment of a caveat under the Real Property Act 1900, where the estate or interest referred to in the caveat relates to the contract,

(g)  fees payable to a duly qualified legal practitioner (not being the credit provider or an employee of the credit provider) authorised to prepare documents for the contract or for a mortgage relating to the contract entered into before the relevant date,

(h)  fees payable to a registered valuer within the meaning of the Valuers Act 2003 (not being the credit provider or an employee of the credit provider) for preparation of a valuation of property the subject of a mortgage relating to the contract,

(i)  fees payable for registration of a registrable interest in prescribed goods (within the meaning of the Registration of Interests in Goods Act 1986) the subject of a mortgage relating to the contract,

(j)  fees payable for a certificate under section 8 (1) of the Registration of Interests in Goods Act 1986 in relation to goods the subject of a mortgage relating to the contract.

(2) In this clause:
relevant date, in relation to a continuing credit contract, means the date on which the contract is entered into.

15 Statement for continuing credit contracts

For the purposes of section 58 of the Act, Form 6 is the prescribed statement.

16 Information in default notice

For the purposes of section 107 (3) (d) of the Act, Form 7 is the prescribed information.

17 Notice after taking possession of mortgaged goods

For the purposes of section 112 of the Act, Form 8 is the prescribed notice.

18 Notice in bills of exchange taken as security

For the purposes of section 120 of the Act, Form 9 is the prescribed notice.

18A Advertisements—prohibited statement

For the purposes of section 121 of the Act, a statement of a rate of interest that is expressed otherwise than as an annual percentage rate is prescribed as a prohibited statement.

19 Descriptive terms to be used in certain documents

(1) In a regulated credit sale contract a matter specified in Column 1 of Schedule 3 shall be described or referred to by the term specified opposite that matter in Column 2 of Schedule 3.
(2) In a regulated loan contract a matter specified in Column 1 of Schedule 4 shall be described or referred to by the term specified opposite that matter in Column 2 of Schedule 4.
(3) In a notice under section 59 of the Act a matter specified in Column 1 of Schedule 5 shall be described or referred to by the term specified opposite that matter in Column 2 of Schedule 5.
(4) In a statement of account referred to in section 61 of the Act a matter specified in Column 1 of Schedule 6 shall be described or referred to by the term specified opposite that matter in Column 2 of Schedule 6.
(5) A credit provider who:
(a)  enters into a regulated credit sale contract,

(b)  enters into a regulated loan contract,

(c)  gives a notice under section 59 of the Act to a debtor, or

(d)  gives a statement of account referred to in section 61 of the Act to a debtor,
that does not comply with the requirements of:
(e)  in the case of a regulated credit sale contract, subclause (1),

(f)  in the case of a regulated loan contract, subclause (2),

(g)  in the case of a notice under section 59 of the Act, subclause (3), or

(h)  in the case of a statement of account referred to in section 61 of the Act, subclause (4),
is guilty of an offence and liable to a penalty not exceeding 5 penalty units.

20 Particulars of insurance

(1) For the purpose of section 130 (2) (b) of the Act, the prescribed particulars are:
(a)  the relevant subject-matter,

(b)  the amount for which the relevant subject-matter is insured or the manner in which that amount may be determined,

(c)  each amount paid and payable under the contract of insurance in respect of the relevant subject-matter,

(d)  the period for which insurance is provided,

(e)  the circumstances in which, the person by whom, and the person to whom, a claim may be made in respect of the contract of insurance, and the manner of making the claim,

(f)  the risks to which the contract of insurance relates in respect of the relevant subject-matter, and

(g)  the name and address of the insurer and the insured.

(2) In subclause (1), the relevant subject-matter means that part of the subject-matter of the contract of insurance in which the debtor has a beneficial interest.

21 Notice of intended proceedings against guarantor

For the purposes of section 138 (3) (c) of the Act, Form 10 is the prescribed notice.

22 Statement for guarantor under contract of guarantee

For the purposes of section 142 of the Act, Form 11 is the prescribed statement.

23 Person authorised to certify assignment of will etc

For the purposes of section 150 of the Act, an assignment referred to in that section shall be executed in the presence of, and certified by:
(a)  a Magistrate, or

(b)  a registrar of the Local Court, or

(c)  a solicitor instructed and employed independently of the proposed assignee.

24 Prescribed requirements for print and type in documents

(1) For the purposes of section 151 (2) (b) of the Act:
(a)  subject to paragraph (c), where any print or type is produced directly or indirectly by a method or process under which each character occupies a space of the same width, that print or type shall be not smaller than 12-pitch,

(b)  subject to paragraph (c), print or type produced by a method or process other than that referred to in paragraph (a), shall be in one of the type faces specified in Schedule 7 and of or larger than the size of 10 point,

(c)  where there is in any printed or typed document a blank space in which further print or type is subsequently inserted by a method or process by which each character occupies a space of the same width, that latter print or type shall, when inserted, be not smaller than 13-pitch.

(2) In subclause (1):
character includes a letter, figure, symbol, punctuation mark and space between adjacent characters,
12-pitch means of dimensions such that any selected passage of print or type 25 mm in length includes no more than 12 characters and 13-pitch has a corresponding meaning.

25 Prescribed requirements for reproduction of print or type

Where the dimensions of the face measurement of print or type in a document comply with clause 24 and that document is photographed, reproduced or copied, the face measurement of the print or type in the document produced by that photograph, reproduction or copy shall, for the purposes of section 151 (2) (b) of the Act, be not less than 95 per centum of the face measurement of the print or type in the original document.

26 Lay-out of certain documents

(1) Subject to sections 152 and 153 of the Act, where a notice, statement or document containing information prescribed by a form is required to be given, served or delivered to a debtor, mortgagor or guarantor, the notice, statement or document shall be in all respects:
(a)  paragraphed,

(b)  contrasted by means of bold type face or otherwise, so as to give effect to the prominence of print or type,

(c)  set out in the contrasting print or type of upper and lower case, and

(d)  enclosed within, or containing, lines, squares or rectangles,
as appears in the form.
(2) A credit provider who gives, serves or delivers, or who causes to be given, served or delivered, a notice, statement or document that does not comply with subclause (1) is guilty of an offence and liable to a penalty not exceeding 5 penalty units.

26A Notice as to maximum annual percentage rate: section 170 (5)

A credit provider under a regulated contract must include in the contract a statement in Form 12 if the annual percentage rate in respect of the contract exceeds the maximum rate referred to in section 170 of the Act and the conditions set out in section 170 (3) (a)–(c) of the Act are satisfied.
Maximum penalty: 5 penalty units.

27 Charges to be included in amount financed

(1) For the purposes of clause 1 (g) of Schedule 2 to the Act and clause 1 (d) of Schedule 4 to the Act, the following charges are prescribed in relation to a credit sale contract or a loan contract:
(a)  fees payable for registration of a mortgage relating to the contract,

(b)  fees payable for registration of the discharge of a mortgage in force before the relevant date,

(c)  fees payable to the Registrar-General for searching records,

(d)  stamp duty payable in relation to a mortgage relating to the contract, being a mortgage proposed to be entered into on or after the relevant date,

(e)  stamp duty payable in relation to a contract of guarantee, being a contract of guarantee in respect of the obligations of the debtor under the contract,

(f)  fees payable for lodgment of a caveat under the Real Property Act 1900, where the estate or interest referred to in the caveat relates to the contract,

(g)  fees payable to a registered valuer within the meaning of the Valuers Act 2003 (not being the credit provider or an employee of the credit provider) for preparation of a valuation of property the subject of a mortgage relating to the contract,

(h)  fees payable for registration of a registrable interest in prescribed goods (within the meaning of the Registration of Interests in Goods Act 1986) the subject of a mortgage relating to the contract,

(i)  fees payable for a certificate under section 8 (1) of the Registration of Interests in Goods Act 1986 in relation to goods the subject of a mortgage relating to the contract.

(2) In this clause:
relevant date, in relation to a credit sale contract or a loan contract, means the date on which the contract is entered into or, if the contract is entered into by acceptance by the credit provider of an offer by the debtor, the date on which the offer is made.

28 Prescribed insurance risks

For the purposes of clause 1 (e) (viii) of Schedule 2 to the Act and clause 1 (b) (vii) of Schedule 4 to the Act, mechanical breakdown or failure of goods subject to a regulated contract or a regulated mortgage is a prescribed risk.

29 Financial Counselling Trust Fund

(1) The fund, and the scheme for the administration of the fund, established by the trust deed executed on 6 August 1993 by the Minister for Consumer Affairs is established for the receipt of money the subject of a direction under section 86B of the Act.
(2) The terms of the trust deed are set out in Schedule 8.
(3) The money in the fund is to be applied for the following purposes:
(a) the provision of funding to community based non-profit organisations that operate in New South Wales to provide financial counselling or train persons in financial counselling,

(b) the provision of funding to non-profit organisations that operate within New South Wales which, or persons who, satisfy the trustees of the fund that they can educate the public of New South Wales in any matter related to the management of personal finances.

Schedule 1

Form 1

(Clause 9)

Prescribed terms and conditions of mortgage

1 In this mortgage:

debtor means the person to whom goods are hired under the hiring contract,

hiring contract means the contract for the hiring of goods as a consequence of which the debtor and the supplier are deemed by section 13 (3) (f) of the Act to have entered into this mortgage,

subject goods means the goods hired under the hiring contract, including any goods or materials that have become incorporated in those goods in the course of maintaining, repairing or modifying them,

supplier means the person from whom the goods are hired under the hiring contract,

the Act means the Credit Act 1984.

2 The debtor gives and the supplier takes a mortgage of the subject goods.

3 Subject to clause 4, the supplier may take possession of the subject goods, or may take possession of, and sell, the subject goods, where:

(a) the debtor has made a fraudulent misrepresentation that induced the supplier to enter into the hiring contract,

(b) the debtor has, contrary to a term of the hiring contract, attempted to dispose of, or encumber (by mortgage, lien or charge), the subject goods,

(c)  the debtor has, contrary to a term of the hiring contract:
(i)  failed to keep the subject goods in good order and repair, or

(ii)  failed to keep the subject goods insured or registered,

(d) the debtor has made default in the payment of any instalment or other monetary sum due under the hiring contract and has failed to remedy the default within one month (or such longer period as the supplier allows) after being required in writing by the supplier to do so,

(e) the debtor has made default in any other obligation under the hiring contract which is likely to affect directly the value of the supplier’s security, and has failed to remedy the default within one month (or such longer period as the supplier allows) after being required in writing by the supplier to do so, or

(f) the debtor has returned the subject goods to the supplier, or has given notice in writing to the supplier that the debtor cannot continue to observe the obligations imposed by the hiring contract.

4 Nothing in clause 3 affects the operation of any statute or of any principle of law or equity applicable to the rights and duties of the debtor and supplier in relation to each other.

Form 2

(Clause 10 (1))

IMPORTANT

BEFORE YOU SIGN

* READ THIS OFFER, so that you know exactly what contract you are entering into and what you will have to do under the contract.

* Fill in or cross out any blank spaces.

* Get a copy of this offer.

* Get Consumer Affairs or someone else you can trust to explain anything you do not fully understand.

THINGS YOU MUST KNOW

* You can withdraw this offer any time before the credit provider accepts it. When the credit provider does accept it, you are bound by it.

* You must take out insurance over any property to be mortgaged if this offer says you have to. You can choose whether you take out any other insurance.

* You can take out insurance through any company you choose.

WARNING

IF YOU DELIBERATELY GIVE FALSE OR MISLEADING INFORMATION TO GET CREDIT YOU CAN BE TAKEN TO COURT.

Form 3

(Clause 10 (2))

IMPORTANT

BEFORE YOU SIGN

* READ THIS OFFER, so that you know exactly what contract you are entering into and what you will have to do under the contract.

* Fill in or cross out any blank spaces.

* Get a copy of this offer.

* Get Consumer Affairs or someone else you can trust to explain anything you do not fully understand.

THINGS YOU MUST KNOW

* Once you have signed this offer you are bound by it.

* You must take out insurance over any property to be mortgaged if this offer says you have to. You can choose whether you take out any other insurance.

* You can take out insurance through any company you choose.

WARNING

IF YOU DELIBERATELY GIVE FALSE OR MISLEADING INFORMATION TO GET CREDIT YOU CAN BE TAKEN TO COURT.

Form 4

(Clause 11)

Things you should know about your credit sale or loan contract

CREDIT ACT (Section 34)

The law says that your credit provider must give you this information about your credit sale contract or loan contract.

This information tells you about some of the rights and obligations of yourself and your credit provider. It does not state the terms and conditions of your contract.

THE CONTRACT

1
How can I get a copy of my contract?
You should already have a copy of the agreement you signed. If you want a copy of your contract write to your credit provider and ask for one. You must pay any fee that the law says your credit provider can charge. Your credit provider will send a copy of your contract to you within 14 days after receiving your request. Your credit provider has to give you a copy of your contract only once in any period of 3 months.
2
What should my contract tell me?
You should read your contract carefully.
Your contract should tell you about your obligations, and include the following details:
*  the amount financed.

*  any credit charge.

*  the total repayments.

*  details of any instalments you must pay.

*  a statement of any annual percentage rate (interest rate).

If your contract does not tell you all of these details, contact Consumer Affairs or get legal advice, as you may have rights against your credit provider.
3
Can I get a statement of account from my credit provider?
Yes. Write to your credit provider and ask for one. (You must pay any fee that the law says your credit provider can charge.) Your credit provider will write back in 14 days after receiving your request telling you:
*  the date and amount of each payment already received.

*  details of any arrears (payments which were due and you did not pay).

*  the dates and amounts of future repayments.

Your credit provider has to give you this information only once in any period of 3 months.
4
Can I pay out my contract early?
Yes. Pay your credit provider the amount owing on the day you wish to end your contract.
5
How can I find out the amount owing?
You can write to your credit provider at any time and ask for a statement of the net balance due (pay out figure). You will get this statement within 7 days after your credit provider receives your request. If you want to, you can also ask for details of how the balance is worked out. Your credit provider has to give you this information only once in any period of 3 months.
6
Will I pay less interest if I pay out my contract early?
Yes. Interest is only calculated for the actual time that money is owing.
However, under your contract you pay a big part of the interest in your early repayments. This means that, for example, by the time you are half-way through your contract, you have paid more than half the interest.
Therefore, the exact amount of interest you will save will vary, depending on when you pay out your contract.
7
Can there be an increase in the net balance due after I get from my credit provider a statement telling me what the amount is?
Your statement of the net balance due will tell you if this can happen. For example, if interest is charged on a daily basis, you also have to pay interest from the date the statement is calculated until the date your contract is paid out.
8
Can any of the conditions of my contract be changed by my credit provider?
Yes, but only if your contract says so. Your credit provider cannot increase your annual percentage rate.
9
Will I be told in advance if my credit provider is going to make a change in the contract?
Yes. You get at least 7 clear days’ notice in writing.
10
If I have been charged by my credit provider for a lawyer to prepare my contract, can I do anything if I think the fee is unreasonable?
Yes. You can ask to have an independent body decide whether the fee was reasonable. Contact Consumer Affairs on how to go about this.
11
Is there anything I can do if I think my contract is unjust?
Yes. You can have an independent body look into the contract. Contact Consumer Affairs or get legal advice.

INSURANCE

12
Do I have to take out insurance?
With certain types of property you must take out insurance. If there is a mortgage, the mortgagee can insist that you insure the property covered by the mortgage. Otherwise, you can decide if you want to take out insurance or not.
13
Will I get details of my insurance cover?
Yes. You will get either a copy of the insurance contract from your insurer or the important details of your insurance cover from your credit provider. The copy of the contract, or the details, will be given to you within 14 days after the insurance contract is entered into or your insurance cover starts.
14
Do I get the benefit of any no claim bonus?
Yes.
15
If the insurer does not accept my proposal, will I be told?
Yes. The insurer will write to you.
16
In that case, what happens to the premium?
If it has already been paid to the insurer, you get it back. If your credit provider has not paid it to the insurer, the insurer will tell you this in writing. You should then contact your credit provider to decide what is to happen to the premium.

MORTGAGES

17
If my contract says there is a mortgage, what does this mean?
A mortgage means that you have given the mortgagee certain rights over any property you have mortgaged. If you default under your contract, you can lose that property and you might still owe money to the mortgagee.
18
Is there anything that I am not allowed to do with the property I have mortgaged?
The law says you cannot sell the property unless you have your mortgagee’s permission. You must also look after the property. Read the mortgage document as well. It will usually have other terms and conditions about what you can or cannot do with the property.
19
If my mortgagee writes asking me where the mortgaged goods are, do I have to say where they are?
Yes. You have 14 days after receiving your mortgagee’s request to write and tell your mortgagee. If someone else has the goods, you have to give the name and address of that person. If you have lost the goods, you have to say how they were lost. If your letter does not get back to the mortgagee in 14 days, or if there is information in it that you know to be false, you can be taken to court.
20
Should I get a copy of my mortgage?
Yes. It will be given to you within 14 days after your mortgage is entered into.
21
What can I do if I find that I cannot afford my repayments and there is a mortgage over property?
Get in touch with your mortgagee immediately. Discuss the matter and see if you can come to some arrangement. For example, you could ask for your contract to be varied, repayments to be deferred, or action postponed.
If you cannot come to a suitable arrangement with your mortgagee and you want to keep the mortgaged property, contact Consumer Affairs for help or seek financial counselling immediately.
Otherwise you may:
*  give the property back to your mortgagee, together with a letter saying you want the mortgagee to sell the property for you,
OR

*  sell the property—but only if your mortgagee gives permission first,
OR

*  give the property to someone who may then take over the repayments, but your mortgagee has to give permission first.

If your mortgagee won’t give permission contact Consumer Affairs for help.
22
Can my mortgagee take or sell the mortgaged property?
Yes, if you have not carried out all of your obligations under your contract.
23
Must my mortgagee tell me first before taking or selling the mortgaged property?
In most cases, yes. In those cases, you get at least one month’s notice in writing so that you can try to do something about the matter. The notice tells you why your mortgagee wants to take action against your property and what you can do to stop it.
Your mortgagee can take the property without giving notice if:
*  there is good reason to think that you are going to sell, hide, damage or get rid of the property, or

*  there is a good reason to think you deliberately misled your mortgagee when you entered into your mortgage, or

*  your mortgagee has been unable to locate you after making reasonable efforts to do so.

If you have repaid more than ¾ of the amount financed, your mortgagee will need an order from an independent body to take anything you have mortgaged (apart from land). It will take more than ¾ of your total repayments to repay more than ¾ of the amount financed because only some of each repayment goes towards paying off the amount financed.
Remember, you must still pay what you owe on your contract, regardless of how little it may be.
24
Can my mortgagee or a person working for my mortgagee come on to my premises to take possession of goods without my permission?
Only if your mortgagee has a court order.
25
What happens if my goods are taken by my mortgagee?
You get a notice setting out what you have to do if you want the goods back. It also tells you what happens if you do nothing. Your mortgagee cannot sell the goods until 21 days after you get a notice called “Notice After Taking Possession of Mortgaged Goods”. So you have 21 days to do something if you want the goods returned.
However, the goods can be sold before the 21 days if you have freely given your mortgagee permission. The law will not allow anyone to force you or threaten you to give your permission.
The goods can also be sold before the 21 days if a court has authorized the sale.

GENERAL

26
What do I do if I cannot make a repayment?
Get in touch with your credit provider immediately. Discuss the matter and see if you can come to some arrangement. For example, you could ask for your contract to be varied, repayments to be deferred, or action postponed.
27
What if my credit provider and I cannot agree on a suitable arrangement?
Contact Consumer Affairs for help.
If you have been unemployed, sick or there is another good reason why you are having problems with your contract, then your contract may be able to be varied under the law to meet your situation.
There are other people, such as financial counsellors, who may be able to help.
28
Can my credit provider take action against me?
Yes, if you are in default under your contract. But the law says that you cannot be unduly harassed or threatened for repayments. If you think you are being harassed or threatened, contact Consumer Affairs or the Trade Practices Commission, or get legal advice.
29
Must my credit provider tell me first before taking action against me?
In most cases, yes. In those cases, you get at least one month’s notice in writing so that you can try to do something about the matter. The notice tells you why your credit provider wants to take action against you and what you can do to stop it.
You do not get any warning if there is good reason to think you deliberately misled your credit provider when your contract was made.
30
Do I have any other rights and obligations?
Yes. The law does give you other rights and obligations. You should also READ YOUR CONTRACT carefully.
IF YOU HAVE ANY DOUBTS OR YOU WANT MORE INFORMATION, CONTACT CONSUMER AFFAIRS OR GET LEGAL ADVICE.

PLEASE KEEP THIS NOTICE. YOU MAY WANT SOME INFORMATION FROM IT AT A LATER DATE.

Form 5

(Clause 12)

Things you should know about cooling-off periods under add-on contracts

CREDIT ACT (Section 37)

THE COOLING-OFF PERIOD

1
What is a cooling-off period?
It is the time the law gives you to cancel your add-on contract.
2
How long is my cooling-off period?
At least 10 days.
3
When does the cooling-off period start?
As soon as you sign the add-on agreement.
4
When does the cooling-off period end?
10 days after you have received this Notice and a notice which has more details of your contract.

CANCELLING THE ADD-ON CONTRACT

5
How do I cancel my contract?
Write to your credit provider. In your letter:
*  say that you want to cancel your contract.

*  give the date of the contract.

*  give details of the goods or services you bought.

Keep a copy of your letter.
6
How should I send the letter cancelling my contract?
You can post it or take it to any of your credit provider’s offices yourself.
If you post the letter, send it by certified or registered mail. Then you can check that it was delivered.
If you take it to your credit provider’s office, you should get an employee to sign and date something to say that your letter has been received. Make sure you keep anything that was signed by the employee.
7
Where should I send the letter to?
A postal address and an office address close to you are set out below:
Postal address: .............................................
(name of credit provider)
.......................................................
(branch, section, person etc if applicable)
.......................................................
(address)
Office address: .............................................
(name)
.......................................................
(floor, suite, shop No, building name etc if applicable)
.......................................................
(address)
.......................................................

AFTER THE CONTRACT IS CANCELLED

8
Do I have any obligations after I cancel my add-on contract?
Yes. When you cancel your add-on contract, you go back to where you were under your old credit sale contract. This means you start making your old repayments again.
9
What do I do with the goods I have bought if I cancel my add-on contract?
You should put them in a safe place. When your credit provider demands the return of the goods, you have to give them back as soon as possible. If you do not give them back, you could be taken to court.

IF YOU HAVE ANY DOUBTS OR YOU WANT MORE INFORMATION, CONTACT CONSUMER AFFAIRS OR GET LEGAL ADVICE.

Form 6

(Clause 15)

Things you should know about your continuing credit contract

CREDIT ACT (Section 58)

The law says that your credit provider must give you this information about your continuing credit contract.

This information tells you about some of the rights and obligations of yourself and your credit provider. It does not state the terms and conditions of your contract.

THE CONTRACT

1
How do I find out the details of my contract?
Your credit provider will give them to you in writing before you start using your credit. You should read them carefully.
2
What details should be included?
The details should include:
*  your credit limit.

*  how any credit charge is to be worked out.

*  any annual percentage rate (interest rate).

*  the length of the billing cycle.

If your contract does not tell you all of these details, contact Consumer Affairs or get legal advice, as you may have rights against your credit provider.
3
Can I get another copy of the details of my contract?
Yes. Write to your credit provider and ask for one. (You must pay any fee that the law says your credit provider can charge.) But your credit provider has to give you a copy of your contract or details of your contract only once in any period of 14 days. In the same way you can get another copy of this Notice.
4
Can any of the conditions of my contract be changed by my credit provider?
Yes, but only if your contract says so.
5
Will my credit provider tell me before making a change in my contract?
Yes. You usually get at least 7 clear days’ notice in writing. You get a period of at least 2 billing cycles’ notice if the change increases the credit charge, increases your repayments, or shortens the time for repayments.
6
How do I know what I owe?
You get a statement of account which will tell you. The statement is sent to you once every billing cycle, if, during the billing cycle:
*  an amount was debited or credited to your account, or

*  there is a credit or debit balance on the account at the end of the cycle.

7
Are there any times when I do not get a statement of account?
Yes. You do not get a statement if:
*  your account balance at the beginning of the billing cycle is nil and no entries are made in the account during the cycle, or

*  your debt was written off by your credit provider and no other entries were made in the account during the cycle, or

*  you have been in default for 3 billing cycles and your credit provider has stopped providing you credit.

8
Is there anything I can do if I think my contract is unjust?
You may be able to have an independent body look into the contract. Contact Consumer Affairs for details or get legal advice.

BILLING ERRORS

9
What can I do if I think my statement of account has an error in it?
Write to your credit provider. Tell your credit provider what you think the error is. If you can, also tell your credit provider how and why you think the error has been made.
Make sure your letter has the following details:
*  your name.

*  the name the account is in, if it is different from your name.

*  the account number.

*  the date of the statement that the error appears in.

10
When should I send the letter?
It is best to send it before your next payment is due. This will stop your credit provider taking action against you and, in the meantime, you will not have to pay the amount you are disputing, or any credit charge on that amount.
11
What happens if my credit provider gets the letter before my next payment is due?
Your credit provider has 3 choices:
1  Correct the error on your next statement of account.

2  Leave the error as it is and send a letter giving reasons why your credit provider thinks there is no error.

3  Do nothing. In this case your credit provider has no right to take action against you to recover the amount you dispute.

12
What if my credit provider does not change the error, and I still think it is wrong?
You can have an independent body decide the matter. To do this, you have to apply within the next 2 complete billing cycles after you receive your credit provider’s reply. If you do not apply in this time, you have to pay the amount you are disputing. The credit charge on this amount will also start up again.

GENERAL

13
If my credit provider owes me any money, can I ask for it to be paid to me?
Yes.
14
What do I do if I cannot make one of my repayments?
Get in touch with your credit provider immediately. Discuss the matter and see if you can come to some arrangement. For example, you could ask for your contract to be varied, repayments to be deferred, or action postponed.
15
What if my credit provider and I cannot agree on a suitable arrangement?
Contact Consumer Affairs for help.
If you have been unemployed, sick, or there is another good reason why you are having problems with your contract, then your contract may be able to be varied under the law to meet your situation.
There are other people, such as financial counsellors, who may be able to help.
16
Can my credit provider take action against me under my contract?
Yes, if you are in default under your contract. But the law says that you cannot be unduly harassed or threatened for repayment. If you think you are being harassed or threatened, contact Consumer Affairs or the Trade Practices Commission, or get legal advice.
17
Must my credit provider tell me first before taking action against me?
In most cases, yes. In those cases, you get at least one month’s notice in writing from your credit provider. At the same time you get a statement of what you have to pay.
The notice tells you why your credit provider wants to take action against you and what you can do to stop it.
You do not get any warning if there is good reason to think you deliberately misled your credit provider when your contract was made.
18
Do I have any rights and obligations under the law if I have given a mortgage?
Yes. You have the right to get certain documents from your credit provider. You also have rights if your credit provider wants to take the mortgaged property.
Your obligations under the law limit what you can do with the mortgaged property.
19
Do I have to take out insurance?
With certain types of property you must take out insurance. If there is a mortgage, your credit provider can insist that you insure the property covered by the mortgage. Otherwise, you can decide if you want to take out insurance or not.
20
Do I have any other rights and obligations?
Yes. The law does give you other rights and obligations. You should also READ YOUR CONTRACT carefully.
IF YOU HAVE ANY DOUBTS OR YOU WANT MORE INFORMATION, CONTACT CONSUMER AFFAIRS OR GET LEGAL ADVICE.

PLEASE KEEP THIS SUMMARY. YOU MAY WANT SOME INFORMATION FROM IT AT A LATER DATE.

Form 7

(Clause 16)

WHAT SHOULD I DO NOW THAT I HAVE RECEIVED THIS NOTICE?

1
You should discuss this matter with your credit provider or mortgagee as soon as possible. You may be able to work out some other arrangement about your contract. For example, you could ask for your contract to be varied, repayments to be deferred, or action postponed.
The person to contact is ...................................
(name or title of officer/s)
of .......................................................
(name of credit provider or mortgagee)
............................................................
(address)
Telephone No/s: .............................................
2
If you cannot come to a suitable arrangement with your credit provider or mortgagee, contact Consumer Affairs immediately. If you have been unemployed, sick or there is another good reason why you are having problems with your contract, then your contract may be able to be varied under the law to meet your situation.
There are other people, such as financial counsellors, who may be able to help.
3
If you disagree with anything in this notice, including what it says you owe, contact Consumer Affairs or get legal advice immediately.

Form 8

(Clause 17)

Notice after taking possession of mortgaged goods

CREDIT ACT (Section 112)

............... 19 .

(Date)

TO: ............................................................

(name of mortgagor)

............................................................

(address of mortgagor)

............................................................

FROM: ............................................................

(name of mortgagee)

............................................................

(address of mortgagee)

............................................................

The law says that you must be given this information.

This information tells you some of your rights and obligations and some of the options open to you.

DETAILS YOU SHOULD KNOW

Description of the goods: ............................................................

Date the goods were taken: ............................................................

The goods were taken because: ............................................................

............................................................

As at the date of this Notice, the cost of enforcing the mortgage (such as the cost of taking the goods) is $............................................................

Your mortgagee’s estimate of the value of the goods is $............................................................

HOW TO GET THE GOODS BACK

IF YOU WANT THE GOODS IT IS PARTICULARLY IMPORTANT FOR YOU TO DO ONE OF THE THINGS LISTED BELOW AS SOON AS POSSIBLE. IF YOU DO NOT ACT WITHIN 21 DAYS AFTER YOU GET THIS NOTICE, YOUR MORTGAGEE MAY SELL THE GOODS.

EITHER

* You can get the goods back if you pay $............... and fix up any reasons why the goods were taken. This amount of $.................... is calculated as follows:

Arrears ....................
$
Enforcement Expenses ..........
$

TOTAL .........................
$

* You can pay the net balance due to the mortgagee worked out to the actual day you pay out your contract. If you do this you can get the goods back and you do not have any further obligations.

To give you an idea of what the net balance due may be, two figures are given below. The first is the net balance due at the date of this notice. The second is the balance calculated 21 days from that date. Any difference is the result of further payments or charges that fall due between the two dates.
1 Net balance due on ...../...../..... = $..........
2 Net balance due on ...../...../..... = $..........

SALE OF THE GOODS

The law says that your mortgagee must get the best price reasonably obtainable for the goods.

If you want to, you can introduce a buyer to your mortgagee. This has to be done in writing and the buyer must be willing to pay the mortgagee’s estimate of the value of the goods. Keep a copy of what you write.

Your mortgagee has to accept the buyer’s offer, with one exception. The exception is where your mortgagee claims to be able to sell the goods for a price higher than the estimate of their value. In this case, the buyer has to be willing to pay this higher price if he or she still wants the goods. However, if the buyer does not buy the goods at the higher price, the law says the higher price must still be taken off the amount you owe.

Your letter introducing the buyer has to reach your mortgagee before the goods are sold. If you post the letter, it is best to send it by certified or registered mail. Then you can check that it was delivered. If you take it to your mortgagee’s office, you should get an employee to sign and date something to say that your letter has been received. Make sure you keep anything that was signed by the employee.

FINALISING THE CONTRACT

No matter how the goods are sold, the money they bring in will be taken off the amount you owe.

If the goods are sold for more than what you owe, you get back what is left after:

* your mortgagee gets the money owing under your mortgage,

* any person holding a prior or subsequent mortgage over the goods gets the money owing under that mortgage, and

* all costs of the sale have been paid.

If the sale price of the goods does not cover the full balance on your contract, you have to pay the difference.

GENERAL

You should discuss this matter with your mortgagee as soon as possible. You may be able to work out some alternative arrangement about your contract and mortgage. For example, you could ask for your contract to be varied, repayments to be deferred, or action postponed.

The person to contact is ............................................................

(name or title of officer/s)

of ............................................................

(name of mortgagee or agent)

(Office address)
..................................................

..................................................
(Postal address)
..................................................

..................................................
Telephone No/s:
..................................................

If you cannot come to a suitable arrangement with your mortgagee, contact Consumer Affairs immediately. If you have been unemployed, sick or there is another good reason why you are having problems with your contract or mortgage, then your contract may be able to be varied under the law to meet your situation.

There are other people, such as financial counsellors, who may be able to help.

IF YOU HAVE ANY DOUBTS OR YOU WANT MORE INFORMATION, CONTACT CONSUMER AFFAIRS OR GET LEGAL ADVICE.

..............................
(Signature of mortgagee or agent)

Form 9

(Clause 18)

CREDIT ACT (Section 120)

This instrument relates to a regulated contract or a regulated mortgage (within the meaning of the Credit Act 1984) under which the drawer or maker may have certain claims or defences.

Form 10

(Clause 21)

Guarantors—Notice of intended legal action

CREDIT ACT (Section 138)

............... 19 .

(Date)

TO: ............................................................

(name of guarantor)

............................................................

(address of guarantor)

............................................................

FROM: ............................................................

(name of credit provider)

............................................................

(address of credit provider)

............................................................

After 14 days from the time you receive this Notice

............................................................

(name of credit provider)

intends to take legal action against you under your contract of guarantee. The credit provider’s reasons are given at the end of this Notice.

You will also find at the end of this Notice:

* the amount the credit provider says you owe at the date of this Notice.

* details to identify your contract of guarantee.

* details to identify the debtor’s credit contract.

You should discuss this matter with the credit provider as soon as possible. You may be able to work out some alternative arrangement about the amount you owe.

The person to contact is ............................................................

(name or title of officer/s)

of ............................................................

(name of credit provider)

............................................................

(address of credit provider)

............................................................

Telephone No/s: ............................................................

If you cannot come to a suitable arrangement with the credit provider, contact Consumer Affairs immediately. If you have been unemployed, sick or there is another good reason why you have problems repaying the amount owing, then your contract may be able to be varied under the law to meet your situation.

There are other people, such as financial counsellors, who may be able to help.

If you disagree with anything in this Notice including what it says you owe, contact Consumer Affairs or get legal advice immediately.

REASONS FOR INTENDED LEGAL ACTION

Under your contract of guarantee, you agreed to pay money owing under a credit contract between ................................... and

(name of debtor)

............................................................

(name of credit provider)

if the debtor defaulted under the contract.

The debtor has defaulted under the contract in the following ways: (Specify details of default by debtor) ............................................................

............................................................

Also, the debtor cannot be found even though the following inquiries have been made: (Specify details of inquiries) ............................................................

............................................................

The credit provider now wants you to pay out the debtor’s contract, and the reasonable costs of enforcing the guarantee.

AMOUNT THE CREDIT PROVIDER CLAIMS YOU OWE

As at the date of this Notice the credit provider claims you owe $............................................................

This amount is calculated as follows:

$

Net balance due under debtor’s credit contract:
Reasonable costs of enforcing your contract of
guarantee:

TOTAL

DETAILS OF THE CONTRACT

Your contract of guarantee:

Date:
Contract No (if any):

Debtor’s credit contract:

Date:
Contract No (if any):

IF YOU HAVE ANY DOUBTS OR YOU WANT MORE INFORMATION ABOUT WHAT TO DO NEXT, CONTACT CONSUMER AFFAIRS OR GET LEGAL ADVICE.

...................................
(Signature of credit provider or agent)

Form 11

(Clause 22)

Things you should know about guarantees

CREDIT ACT (Section 142)

The law says the credit provider must give you this information about your contract of guarantee.

This information tells you about some of the rights and obligations of yourself and the credit provider. It does not state the terms and conditions of your contract.

GUARANTEES

1
What is a guarantee?
A promise by you that the person who is getting credit under a credit contract will keep to all the terms and conditions. If that person does not do so, you promise to pay the credit provider all the money owing on the contract as soon as the money is asked for.
2
How do I know how much the debtor is borrowing and the credit charges?
These details are on the copy of the credit contract or offer that the debtor signed. You should have been given a copy of that contract or offer before you signed the guarantee papers.
3
What documents should I be given?
*  The document you are reading now.

*  A copy of your contract.

*  A copy of the credit contract or offer signed by the debtor.

4
What other information can I get?
* If you have guaranteed repayment of a credit sale contract or a loan contract, you can write to the credit provider and ask for:
*  an extra copy of your contract of guarantee.

*  an extra copy of the debtor’s credit sale contract or loan contract.

*  a copy of any other document signed by the debtor (for example, a mortgage) or by you.

*  a statement of the debtor’s repayments under the credit sale contract or loan contract.

*  details of any insurance cover financed by the debtor’s credit sale contract or loan contract.

When writing to the credit provider, you must pay any fee that the law says the credit provider can charge.
The credit provider will write back to you within 14 days after receiving your request.
But the credit provider has to give you this information only once in any period of 3 months.
*  If you have guaranteed repayment of a continuing credit contract you can write to the credit provider and ask for:

*  an extra copy of the debtor’s continuing credit contract or a notice stating the details of the contract.

*  a copy of the notice given to the debtor entitled “THINGS YOU SHOULD KNOW ABOUT YOUR CONTINUING CREDIT CONTRACT”.

Again, when writing to the credit provider you must pay any fee that the law says the credit provider can charge.
But the credit provider has to give you these documents only once in any period of 14 days.
* You can write to the credit provider and ask for the net balance due (pay-out figure) under the credit contract guaranteed by you. You will get this information within 7 days after the credit provider receives your request. If you want to, you can also ask for details of how the balance is worked out.
But the credit provider has to give you this information only once in any period of 3 months.
5
Can I cancel my contract of guarantee?
You may be able to under certain circumstances. For exact details, contact Consumer Affairs or get legal advice.

IF THE DEBTOR DEFAULTS

6
Do I get any warning that the credit provider wants to take action against the debtor?
In most cases, yes. You get the same warning as the debtor. You get a notice in writing telling you why the credit provider wants to take action against the debtor. It also tells you what the debtor has to do to stop the action. The debtor has at least one month to try and fix up the problem. You should discuss the matter with the debtor immediately.
7
Can the credit provider take action against me without taking action against the debtor at the same time?
No, except where:
*  the debtor cannot be found,

*  the debtor’s financial affairs are being handled under bankruptcy law, or

*  a court has declared that action can be taken against you without action being taken against the debtor.

8
If the debtor cannot be found and the credit provider intends to take legal action against me do I get any warning?
Yes. You get a notice giving you at least 14 days’ warning.
9
Exactly how much do I have to pay the credit provider if the debtor defaults?
You have to pay what the debtor owes the credit provider, plus the credit provider’s costs in having you honour your contract of guarantee.

GENERAL

10
What can I do if I am asked to pay out the credit contract and I cannot pay it all at once?
Talk to the credit provider and see if some arrangement can be made about paying. If you cannot come to a suitable arrangement, contact Consumer Affairs for help. If you have been unemployed, sick or there is another good reason why you are having problems with your contract, then your contract may be able to be varied under the law to meet your situation.
There are other people, such as financial counsellors, who may be able to help.
11
If I pay out money for a debtor, is there any way I can get it back?
You can sue the debtor. But remember, if the debtor cannot pay the credit provider, he or she probably cannot pay you back for a while, if at all.
12
What happens if I go guarantor for someone who is under 18 when he or she signs a credit contract?
You are responsible for the full debt if the contract of guarantee had a clear and obvious warning near your signature. The warning had to tell you that the courts might not let you sue the debtor if you have to pay out the credit contract for him or her.
13
Do I have any other rights and obligations?
Yes. The law does give you other rights and obligations. You should also READ YOUR CONTRACT carefully.
IF YOU HAVE ANY DOUBTS OR YOU WANT MORE INFORMATION, CONTACT CONSUMER AFFAIRS OR GET LEGAL ADVICE.

PLEASE KEEP THIS SUMMARY. YOU MAY WANT SOME INFORMATION FROM IT AT A LATER DATE.

Form 12

(Clause 26A)

Maximum annual percentage rate

The law says that the credit provider must give you this information about maximum interest rates applying to regulated contracts.

The annual percentage rate on this contract is .....*%.

The maximum annual percentage rate on a regulated contract is set at .....**% by law. If the annual percentage rate exceeds this maximum, the contract normally becomes void.

*The credit provider must insert here the annual percentage rate on this contract.
**The credit provider must insert here the current statutory maximum as set out in section 170 of the Credit Act 1984.

But there is an exception under section 170 of the Credit Act 1984 which allows the annual percentage rate to exceed the maximum by a certain margin if:

• the amount financed under your contract is $2,000 or less, and

• the credit provider has not provided credit to you or your family in the last 2 years

The credit provider believes that this contract fits into the exception.

If you want advice as to your rights, and the reasons why this contract fits into the exception, contact a solicitor, a financial counsellor or Consumer Affairs.

Schedule 2 Annual percentage rate—applicable methods

(Clause 13)

Method No 1

(1) This clause applies to a credit sale contract or a loan contract, where:
(a)  the whole of the credit charge is a pre-determined credit charge,

(b)  the whole of the amount financed is, or is to be, provided on the same day, and

(c)  the amount financed and the pre-determined credit charge are payable by equal instalments at equal intervals, the first interval commencing on the date on which the amount financed was provided.

(2) Where this clause applies to a contract, the annual percentage rate may be determined in accordance with the formula:

where:
N is the total number of instalments,
C is the number of instalments that, under the contract, will be paid in one year or, where the contract is to be completed in less than one year, the number of instalments that would be paid in one year if instalments continued to be paid at the same intervals, and
F is an amount determined in accordance with the formula:

where:
T is the total amount of the pre-determined credit charge, and
A is the amount financed.

Method No 2

2 The annual percentage rate may be expressed as the percentage rate per annum which when applied to the unpaid monthly balance of the amount financed calculated according to the actuarial method will yield a sum equal to the amount which under the contract would be the credit charge if all payments under the contract were paid when they were required to be paid under the contract.

Definitions

3 For the purposes of clause 1 of this Schedule:

(a) instalments shall be deemed to be equal if all the instalments except one are of the same amount and the difference between the amount of that one instalment and the amount of each of the other instalments is not more than $5 or 5 per centum of the amount of each of the other instalments, whichever is the greater,

(b) monthly intervals shall be deemed to be equal intervals,

(c) intervals shall be deemed to be equal if all the intervals except one are of the same length and the difference between the length of that one interval and the length of each of the other intervals is not more than 5 per centum of the length of each of the other intervals, and

(d) intervals shall be deemed to be equal if all intervals except the first are monthly intervals, the amount financed is provided on the 29th, 30th or 31st day of a month and the first instalment is payable on the first day of the month that immediately follows the end of the month that next succeeds the month in which the amount financed is provided.

Schedule 3 Specified descriptive terms for use in a credit sale contract

(Clause 19 (1))

Column 1		Column 2
Matters described or referred to		Descriptive terms
1	The amount financed expressed in accordance with Schedule 2 to the Act.	Amount financed.
2	The credit charge expressed in accordance with Schedule 3 to the Act.	Credit charge.
3	The annual percentage rate expressed in accordance with section 38 of the Act.	Annual percentage rate.
4	The amount paid or provided, or to be paid or provided, by way of deposit:
	(a) paid in money;	Cash deposit.
	(b) by a consideration other than money;	Other deposit.
	(c) on account of a trade-in allowance, and	Trade-in.
	(d) being the sum of all amounts paid or provided, or to be paid or provided, by way of deposit.	Total deposit paid.
5	The cash price of the goods or services.	Cash price.
6	Amounts payable by the debtor to the credit provider in respect of:
	(a) charges for installation of the goods;	Installation charges.
	(b) charges for maintenance of the goods;	Maintenance charges.
	(c) charges for delivery of the goods to the debtor;	Delivery charges.
	(d) registration fees;	Registration fees.
	(e) compulsory insurance;	Compulsory insurance.
	(f) insurance of mortgaged property (not being compulsory insurance);	Mortgaged property insurance.
	(g) insurance against loss of the security interest of a mortgagee by reason of any Act;	Title insurance.
	(h) insurance against sickness of, accidental injury to, or disability or death of, the debtor or debtors;	Consumer credit insurance.
	(i) life insurance of the debtor or debtors;	Life insurance.
	(j) insurance against unemployment of the debtor or debtors;	Unemployment insurance.
	(k) insurance against loss of profits by the debtor or debtors;	Loss of profits insurance.
	(l) stamp duty payable in respect of or in relation to:
	(i) the credit sale contract;	Contract stamp duty.
	(ii) any mortgage relating to the credit sale contract entered into on or before the relevant date as defined in clause 2 of Schedule 2 to the Act, and	Mortgage stamp duty.
	(iii) the sum of paragraphs (i) and (ii), and	Total stamp duty.
	(m) fees payable to a legal practitioner (not being the credit provider or an employee of the credit provider) authorised to prepare documents for the credit sale contract or for a mortgage relating to the credit sale contract entered into at or before the time of the making of the credit sale contract.	Legal fees.
7	The Act.	Credit Act.
8	This Regulation.	Credit Regulation.
9	The Commissioner or the Department of Consumer Affairs.	Consumer Affairs.

Schedule 4 Specified descriptive terms for use in a loan contract

(Clause 19 (2))

Column 1		Column 2
Matters described or referred to		Descriptive terms
1	The amount financed expressed in accordance with Schedule 4 to the Act.	Amount financed.
2	The credit charge expressed in accordance with Schedule 5 to the Act.	Credit charge.
3	The annual percentage rate expressed in accordance with section 38 of the Act.	Annual percentage rate.
4	Amounts payable by the debtor to the credit provider in respect of:
	(a) insurance of mortgaged property (not being compulsory insurance);	Mortgaged property insurance.
	(b) insurance against loss of the security interest of a mortgagee by reason of any Act;	Title insurance.
	(c) insurance against sickness of, accidental injury to, or disability or death of, the debtor or debtors;	Consumer credit insurance.
	(d) life insurance of the debtor or debtors;	Life insurance.
	(e) insurance against unemployment of the debtor or debtors;	Unemployment insurance.
	(f) insurance against loss of profits by the debtor or debtors;	Loss of profits insurance.
	(g) stamp duty payable in respect of or in relation to:
	(i) the loan contract;	Contract stamp duty.
	(ii) any mortgage relating to the loan contract entered into on or before the relevant date as defined in clause 2 of Schedule 4 to the Act, and	Mortgage stamp duty.
	(iii) the sum of paragraphs (i) and (ii), and	Total stamp duty.
	(h) fees payable to a legal practitioner (not being the credit provider or an employee of the credit provider) authorised to prepare documents for the loan contract or for a mortgage relating to the loan contract entered into at or before the time of the making of the loan contract.	Legal fees.
5	The Act.	Credit Act.
6	This Regulation.	Credit Regulation.
7	The Commissioner or the Department of Consumer Affairs.	Consumer Affairs.

Schedule 5 Specified descriptive terms for use in a notice under section 59 of the Act

(Clause 19 (3))

Column 1		Column 2
Matters described or referred to		Descriptive terms
1	The maximum amount referred to in section 59 (1) (a) of the Act.	Credit limit.
2	The period referred to in section 59 (1) (e) of the Act.	Due date.
3	The annual percentage rate in respect of the continuing credit contract.	Annual percentage rate.
4	The Act.	Credit Act.
5	This Regulation.	Credit Regulation.
6	The Commissioner or the Department of Consumer Affairs.	Consumer Affairs.

Schedule 6 Specified descriptive terms for use in a statement of account referred to in section 61 of the Act

(Clause 19 (4))

Column 1		Column 2
Matters described or referred to		Descriptive terms
1	The date of the last day of the billing cycle.	Statement date.
2	The amount owed by the debtor under the contract:
	(a) on the first day of the billing cycle, and	Opening balance.
	(b) on the last day of the billing cycle.	Closing balance.
3	Amounts payable by the debtor to the credit provider in respect of:
	(a) charges for installation of the goods;	Installation charges.
	(b) charges for maintenance of the goods;	Maintenance charges.
	(c) charges for delivery of the goods to the debtor;	Delivery charges.
	(d) insurance of mortgaged property (not being compulsory insurance);	Mortgaged property insurance.
	(e) insurance against loss of the security interest of a mortgagee by reason of any Act;	Title insurance.
	(f) insurance against sickness of, accidental injury to, or disability or death of, the debtor or debtors;	Consumer credit insurance.
	(g) life insurance of the debtor or debtors;	Life insurance.
	(h) insurance against unemployment of the debtor or debtors,	Unemployment insurance.
	(i) insurance against loss of profits by the debtor or debtors; and	Loss of profits insurance.
	(j) stamp duty payable in respect of or in relation to:
	(i) the continuing credit contract;	Contract stamp duty.
	(ii) any mortgage relating to the continuing credit contract entered into during the billing cycle, and	Mortgage stamp duty.
	(iii) the sum of paragraphs (i) and (ii).	Total stamp duty.
4	The amount of the credit charge in respect of the billing cycle.	Credit charge.
5	The annual percentage rate in respect of the continuing credit contract.	Annual percentage rate.
6	The date by which a payment by the debtor is requested.	Due date.
7	The Act.	Credit Act.
8	This Regulation.	Credit Regulation.
9	The Commissioner or the Department of Consumer Affairs.	Consumer Affairs.

Schedule 7 Print or type for use in documents under Credit Act

(Clause 24 (1) (b))

Avante Garde
Avante Garde Book
Avante Garde Medium Bold
American Typewriter
American Typewriter Medium
American Typewriter Bold
Baskerville
Baskerville Roman
Baskerville Roman Italic
Baskerville Roman Bold
Bembo
Bembo Roman
Bembo Roman Italic
Bembo Bold
Bodini
Bodini Roman
Bodini Roman Italic
Bodini Bold
Century Old Style
Century Old Style Roman
Century Old Style Roman Italic
Century Old Style Bold
Century School Book
Century School Book Roman
Century School Book Roman Italic
Century School Book Bold
Clarendon
Clarendon Roman
Clarendon Roman Italic
Clarendon Bold
Claro
Claro Light
Claro Medium
Claro Medium Italic
Claro Demi-Bold
De Vinne
De Vinne Roman
De Vinne Roman Italic
De Vinne Bold
Dutch Roman
Gill Sans
Gill Sans Medium
Gill Sans Medium Italic
Gill Sans Bold
Gloucester Old Style
Gloucester Old Style Roman
Gloucester Old Style Roman Italic
Gloucester Old Style Bold
Helvetica
Helvetica Light
Helvetica Medium
Helvetica Medium Italic
Helvetica Bold
ITC Cheltenham Bold
ITC Cheltenham Light
Karnak Intermediate
Karnak Intermediate Roman
Karnak Intermediate Roman Italic
Karnak Intermediate Bold
Megaron
Megaron Light
Megaron Medium
Megaron Medium Italic
Megaron Bold
Metro
Metro Italic
Metro Bold
Musica
Musica Roman
Musica Roman Italic
Musica Bold
Old Style
Old Style Roman
Old Style Roman Italic
Old Style Bold
Optima
Optima Roman
Optima Roman Italic
Optima Bold
Plantin
Plantin Roman
Plantin Roman Italic
Plantin Bold
Press Roman Bold
Press Roman Medium
Record Gothic
Rockwell Light
Rockwell Medium
Rockwell Bold
Rockwell Italic
Souvenir
Souvenir Light
Souvenir Light Italic
Souvenir Bold
Souvenir Medium
Swiss Roman
Times (or English)
Times (or English) Roman
Times (or English) Roman Italic
Times (or English) Bold
Univers
Univers Light
Univers Medium
Univers Medium Italic
Univers Bold
Zapf
Zapf Medium

Schedule 8 Trust Deed

(Clause 29)

THIS DEED OF TRUST made the sixth day of August, 1993

BETWEEN
WENDY SUSAN MACHIN Minister for Consumer Affairs for the State of New South Wales (hereinafter called “the Settlor”) of the one part
AND
JOHN LEONARD GARRICK of 15 Wembury Road, St Ives,
JOHN FREDERICK WILLIAMS of 5 Menzies Road, Marsfield,
LYN GAIN of 191 Brougham Street, Kings Cross,
PHILIP JOHN KELLOW of 31 Prospect Street, Erskineville, and
SHENAGH BARNES of 27 Park Avenue, Randwick
(hereinafter called “the Trustees”) of the other part

WHEREAS

A.
The Settlor has paid the sum of one hundred dollars ($100.00) to the Trustees to be held by the Trustees upon the trusts hereinafter set forth.

B.
The Trustees have consented to act as Trustees of these presents and to accept the trusts hereinafter expressed.

C.
The Trust hereby established is for the purposes of:
(a) alleviating the impact of credit-overcommitment of New South Wales consumers, through the provision of funding to New South Wales community based non-profit organisations to be used by them in financial counselling, or the training of persons in financial counselling, and

(b) advancing public education in New South Wales in all matters relating to the management of personal finances, through the provision of funding to New South Wales non-profit organisations which or persons who satisfy the Trustees that they can educate the public of New South Wales in any matter related to the management of personal finances.

NOW THEREFORE THIS DEED WITNESSES that it is hereby agreed and declared as follows:

1. NAME

The Trust hereby established shall be known as “The Financial Counselling Trust Fund”.

2. INTERPRETATION

In this Deed unless there is something in the subject matter or context inconsistent therewith:

(a) “the Act” means the Credit Act 1984 of New South Wales,

(b) “available funds” means such part of the income derived from time to time on the investment of the Trust Fund remaining after the deduction of the reasonable administration costs of the Trust,

(c) “this Deed” means this Deed as altered or varied by any alterations or variations lawfully made thereto,

(d)   “financial counselling” means:
(i)   the provision (primarily by way of face to face counselling) of advice on and assistance with, and

(ii)   the dissemination of knowledge and skill with regard to,
the management of personal finances,

(e) “Minister” means the Minister for Consumer Affairs or such other Minister who is responsible for the administration of the Act,

(f) “Credit Counselling Program” means the scheme administered by the New South Wales Government for the time being for the allocation of grants for the funding of financial counselling,

(g) “registered company auditor” has the same meaning as in section 9 of the Corporations Law,

(h)   “securities” means:
(i)   shares or stock of, or debentures, notes or bonds issued by, any public company whose registered office is in the Commonwealth of Australia,

(ii)   prescribed interests, in respect of which a prospectus has been registered with the Australian Securities Commission,

(iii)   units of such shares or of such prescribed interests,

(iv)   options to buy or sell any of the things specified in paragraphs (i) to (iii) (both inclusive), or

(v)   option contracts,
but does not include an excluded security.
For the purposes of this definition, “excluded security”, “prescribed interest” and “unit” have the same meanings as they do in section 9 of the Corporations Law and “option contract” has the same meaning as paragraph (b) of the definition of that expression in section 9 of the Corporations Law,

(i) “Tribunal” means the Commercial Tribunal established by the Commercial Tribunal Act 1984 of New South Wales,

(j) “Trust” means the trust created by this Deed,

(k) “the Trust Fund” means and includes the aforesaid sum of one hundred dollars ($100.00), money received pursuant to a direction by the Tribunal made under section 86B (1) of the Act, donations, the accumulations of income hereinafter directed or empowered to be made, all accretions to the Trust Fund and the investments and property from time to time representing the said moneys donations and accumulations or any part or parts thereof respectively,

(l) “the Trustees” means the persons referred to herein and such other Trustee or Trustees appointed for the time being under this Deed,

(m) “year” means financial year ending 30 June,

(n) words importing any gender include all genders and words importing the singular number include the plural number and vice versa,

(o) a reference to a statute is to the statute as amended, consolidated or replaced from time to time.

3. APPLICATION OF THE TRUST FUND

(a)
Subject to the provisions of this Deed, the available funds of the Trust shall be applied and used by the Trustees exclusively for the provision of funding to:
(i) New South Wales community based non-profit organisations to provide financial counselling or train persons in financial counselling, and

(ii) New South Wales non-profit organisations which or persons who satisfy the Trustees that they can educate the public of New South Wales in any matter related to the management of personal finances.

(b)
(i)   In selecting a recipient of funds pursuant to:
–   clause 3 (a) (i), the Trustees shall apply the most recent needs analysis used in making grants under, and eligibility criteria set out in, the Credit Counselling Program,

–   clause 3 (a) (ii), the Trustees shall apply the most recent needs analysis used in making grants under the Credit Counselling Program, so far as is practicable.

For the purpose of clause 3 (b) (i), “needs analysis” is the triennial evaluation, or such other evaluation from time to time, made by the New South Wales Government using such criteria as it considers appropriate, for the allocation of grants for the funding of financial counselling.

(ii)   Trustees may impose such conditions on grants as they consider appropriate and in doing so shall have regard to the purposes of the Trust set out in Recital C.

(c)
Where the New South Wales Government administers a scheme whose objects include funding the provision of financial counselling services, the Trustees shall consult with the administrators of such scheme in order to ensure the most equitable distribution of both the available funds of the Trust and the funds of the Government.

(d)
Organisations or persons which are to receive funding by the Trust shall be chosen at a meeting of all Trustees.

(e)
In the year of commencement of the Trust, if the Trust has received:
–   money pursuant to a direction by the Tribunal made under section 86B (1) of the Act, or

–   a donation of money,
the Trustees, within one (1) month of receipt of such money:
(i)   shall estimate the available funds which will accumulate by 30 June next succeeding, from the investment of such money,

(ii)   and may use the capital of the Trust Fund to make grants PROVIDED THAT the capital used does not exceed an amount equal to such estimated accumulated available funds.

(f)
No later than two (2) months after the expiration of each year, the Trustees shall determine how all available funds derived by the Trust during such year will be distributed in the following year.

(g)
The Trustees shall keep a register of all applications made to the Trust for funds and record in it details of the names and addresses of the applicants and the results of the applications.

4. SECRETARY AND TREASURER

(a)
The Trustees may from time to time appoint a person to act as secretary and a person to act as treasurer of the Trust. Such persons may be (but need not be) Trustees.

(b)
(i)   The secretary of the Trust shall, as soon as practicable after being appointed as secretary, lodge notice with the Trust of the address of his place of employment or business and business and private telephone numbers.

(ii)   It is the duty of the secretary to keep:
(a)   records of all appointments of Trustees (including the Trustees’ names and addresses),

(b)   minutes of the names of members of the Trustees present at a Trustees meeting, and

(c)   minutes of all proceedings at Trustees meetings.

(iii)   Minutes of proceedings at a Trustees meeting shall be signed by the Chairperson of the meeting or by the Chairperson of the next succeeding meeting.

(iv)   Except as otherwise provided by this Deed the secretary shall keep in his custody or under his control all records, books and other documents relating to the Trust.

(v)   The records, books and other documents of the Trust may be inspected by any Trustee during normal business hours.

(c)
It is the duty of the treasurer to ensure that:
(i) all money due to the Trust is collected and received and that all payments authorised by the Trust are made,

(ii) and proper accounts are kept in accordance with clause 9 (b).

5. TRUSTEE MEETINGS

(a)
There shall be held at least once in each calendar year a meeting of the Trustees.

(b)
The Trustees may meet either in person or by telephone or other electronic means of conferring for the despatch of business.

(c)
Except in the circumstances specified in clause 3 (d), three Trustees shall form a quorum and a meeting of Trustees at which a quorum is present shall be competent to exercise all or any of the powers and discretions vested in the Trustees. A Trustee may be present at a meeting either in person or by proxy or in accordance with the provisions of clause 5 (k).

(d)
The Trustee appointed by the Minister to represent the Minister shall be the Chairperson.

(e)
Any Trustee may at any time cause the secretary to convene a meeting of the Trustees.

(f)
The Chairperson shall preside at all meetings of the Trustees save that if at any meeting the Chairperson is not present within ten minutes after the time appointed for the same the Trustees may choose one of their number present to be Chairperson of that meeting.

(g)
Questions arising at any meeting shall be decided by a majority of votes (each Trustee present (either in person or by proxy or in accordance with the provisions of clause 5 (k)) having one vote) and in case of an equality of votes the Chairperson shall have a second or casting vote.

(h)
The majority shall be a simple majority save in the circumstances contemplated by clause 10 (e) (iv) hereof.

(i)
Notice of every meeting shall be sent by the secretary to each Trustee. Any notice posted ten clear days before the date of the meeting shall be deemed to have been duly served. Notwithstanding the foregoing, such period of Notice may be shortened or dispensed with where the urgency of the business to be transacted at the meeting so requires.

(j)
Every notice of a meeting shall state the place, day and hour of the meeting and the business to be transacted thereat.

(k)
For the purpose of clause 5 (c), where the meeting is conducted by telephone or other electronic means of conferring, a Trustee shall be regarded as being present if the Trustee is able to hear the entire meeting and to be heard by all others attending the meeting.

(l)
A Trustee wishing to appoint a proxy shall do so by means of the form annexed hereto as Appendix 1. A Trustee may only appoint a proxy who is also one of the Trustees.

(m)
A resolution in writing signed by all the Trustees shall be as valid and effectual as if it had been passed at a meeting of the Trustees duly convened and held.

6. INVESTMENTS

(a)
The Trust Fund shall be held in perpetuity and may be invested in one or more of the following modes of investment:
(i)   upon mortgage of land of any tenure improved or unimproved within the Commonwealth of Australia,

(ii)   in the purchase of stock, debentures, notes or bonds of the Commonwealth of Australia or any of the Territories or States thereof or of any government, semi-government, local government or statutory authority thereof or therein,

(iii)   on deposit with or loan to:
–   any bank licensed to carry on business under the Banking Act 1959 of the Commonwealth,

–   any building society within the meaning of the Financial Institutions (NSW) Code, or

–   any company whose registered office is in the Commonwealth of Australia PROVIDED THAT such deposit or loan is secured,
for any period whatsoever,

(iv)   in the purchase of securities,

(v)   any other investment which Trustees may lawfully make in the State of New South Wales,

PROVIDED THAT no part of the Trust Fund may be invested in any property in which any Trustee has any beneficial interest whatsoever, direct or indirect (other than the holding of not more than one percent of the capital of a public company listed on an Australian Stock Exchange) without the prior written approval of the Trustees.

(b)
Subject to clause 6 (c) all documents (other than documents of title) requiring signature in connection with operating on or dealing with the accounts referred to in clause 6 (a) and the investments referred to in clause 6 (a) and cheques, drafts, bills of exchange, promissory notes and other negotiable instruments shall be signed by any two Trustees or other persons being Trustees or persons authorised to do so by the Trustees. Such authority may be revoked at any time by any two Trustees.

(c)
The Trustees may authorize any person to make deposits to the accounts referred to in clause 6 (a).

7. POWERS AND DUTIES OF THE TRUSTEES

(A)
In addition to all the powers vested in the Trustees by law or by statute or by this Deed the Trustees shall have and may, subject to clause 3 (f), exercise at any time and from time to time any or all of the following powers:
(a)   to sell or convert into money any asset or investment and to re-invest the proceeds,

(b)   to accumulate the income of the Trust Fund by investing the same or the resulting income therefrom from time to time in any of the modes of investment authorised by this Deed,

(c)   to change, vary or transpose any investments or assets for the time being forming part of the Trust Fund for others hereby or otherwise by law authorised and to release investments for the purposes of this Deed or to transfer any investment in performance or satisfaction of those purposes,

(d)   to apply any moneys for the time being forming part of the Trust Fund in improving or developing property which or an interest in which or the proceeds of the sale of the whole or part of which may for the time being be subject to the trusts hereof or erecting, enlarging, improving or rebuilding such property,

(e)   to pay all insurance premiums, rates, taxes, rents and other outgoings in connection with any real or personal property subject to the trusts hereof and to manage the said property and effect such repairs as the Trustees may consider necessary or advisable to such property and where such expenditure is unable to be charged against income the Trustees shall be at liberty to resort to capital,

(f)   to lease or license all or any part of any real or personal property for the time being subject to the trusts hereof for any period upon such terms and conditions and for such rent as the Trustees shall determine and make allowances to and with tenants and others and accept surrenders and waive breaches of covenants and determine tenancies and licences and raise out of the capital or income any sum from time to time required and in the Trustees’ opinion properly payable thereout for the exercise of any of the powers and discretions herein contained and generally to deal with the said real and personal property in a proper manner and in due course of management as if beneficially entitled thereto,

(g)   to pay application moneys and calls on securities and concur in any arrangement for the modification of the rights of holders of securities,

(h)   to surrender and deliver up any securities forming part of the Trust Fund for such consideration and upon such terms and conditions as the Trustees shall think fit to any company reducing its capital and the Trustees may receive such consideration in the form of cash, securities or other assets as may be agreed upon between the Trustees and such company,

(i)   to consent to any winding-up or reorganisation or reconstruction of any company the securities of which form part of the Trust Fund and to consent to the division or partition in kind or specie of the assets or property of any company or to any reduction of capital or other dealing with such securities as the Trustees may consider advantageous or desirable,

(j)   to employ managers, agents, advisers, solicitors, accountants or other persons or companies in the execution of the trusts and powers herein contained and instead of acting personally from time to time to employ and pay out of the Trust Fund such sums, fees, salaries, commissions, emoluments and expenses as the Trustees shall consider reasonable to any such managers, agents, advisers, solicitors, accountants or other persons or companies to transact any business or to do any act required to be done in connection with the administration of the trusts hereby declared including the receipt and payment of money,

(k)   to institute and defend proceedings at law, to proceed to the final end and determination thereof or compromise the same,

(l)   to exercise or concur in exercising in such manner as the Trustees shall determine the voting and other rights attaching to any securities for the time being forming part of the Trust Fund,

(m)   to compromise and settle all matters arising in relation to the Trust Fund or the trusts hereof,

(n)   to enter into possession and continue in possession of the whole or any part of the Trust Fund and to manage and/or superintend the management of the same, and without limiting the Trustees’ powers generally, to exercise all such powers and authorities and discretions as trustees are by law authorised to exercise,

(o)   to raise or borrow money either bearing or free of interest with or without security and to secure repayment of money so borrowed and any interest thereon by mortgage or charge over all or any of the investments or assets of the Trust Fund or with or without giving any other form of security or acknowledgment and to apply such money for any of the purposes for which either the income or the capital of the Trust Fund is for the time being applicable hereunder including investment of money in any manner authorised by clause 6 and no lender shall be concerned to enquire as to whether the necessity for any such borrowing has arisen or as to the purpose for which it is required or as to the application of the money borrowed,

(p)   to accept unconditional donations, bequests, legacies and gifts of all types whether subject to any special trust or not to or for the benefit of the Trust Fund provided that the Trustees may reject any donation, bequest, legacy or gift without assigning any reason for its rejection,

(q)   to determine which of the assets and receipts of the Trust are capital and which are income, and

(r)   generally to do all such other lawful acts and things as are incidental or conducive to the attainment of the general purposes and conduct of the trusts hereby established.

(B)
The Trustees shall accept to or for the benefit of the Trust Fund all money directed to be paid to the Trust by the Tribunal pursuant to section 86B (1) of the Act, where such direction imposes no conditions on the distribution or application of such money by the Trust.

8. TRUSTEES FEES

(a)
The Trustees shall be paid a fee for attending each Trustee meeting. The amount of such fees shall be determined and varied from time to time by the Minister.

(b)
The Trustees shall be entitled to be reimbursed their costs and expenses properly incurred in the administration of the Trust Fund and the execution of the trusts of this Deed (including without limiting the generality of the foregoing, premiums in respect of indemnity insurance relating to the performance of their duties or exercise of their powers pursuant to this Deed).

9. ACCOUNTS AND AUDIT

(a)
Pending a final decision on the investment of moneys received by the Trustees from any source, such moneys shall be paid by the Trustees into one or more of:
(i) a current or savings account with any bank licensed to carry on business under the Banking Act 1959 of the Commonwealth, or

(ii) an account with a building society within the meaning of the Financial Institutions (NSW) Code.

Any such account shall be in the name of the Trust and shall be operated in accordance with the customs, usages and practices of banks or building societies (as the case may be) as if the Trustees were acting on their own behalf solely including and without limiting the effect of the foregoing to operate any such account on overdraft and to agree to the bank debiting any such account with interest, costs, charges, expenses and liabilities incurred by the bank or building society (as the case may be) at any time on behalf of the Trustees and in addition to any other power herein contained the Trustees shall have power to borrow or raise or secure the payment of money in such manner as the Trustees think fit and to secure the same or the repayment or performance of any debt, liability, contract, guarantee or other engagement incurred or to be entered into by the Trustees in any way with such bank or building society (as the case may be).

(b)
The Trustees shall keep or cause to be kept proper accounts of all receipts, payments, assets and liabilities relating to the Trust Fund and all other matters necessary for showing a true statement and condition of the Trust Fund and such accounts shall be audited at least once a year by a registered company auditor. The accounts shall be kept at such place or places as the Trustees think fit from time to time and shall be open for inspection during normal business hours by a duly appointed representative of the Minister.

(c)
The Trustees shall, within three months of the conclusion of each year, forward to the Minister a report of the financial and operational activities of the Trust for that year.

10. TRUSTEES

(a)
There shall be five Trustees.

(b)
There shall be appointed two Trustees with knowledge of the interests of credit providers (not being current employees of or current consultants to credit providers or representative industry bodies), two Trustees with knowledge of the interests of consumers (not being currently practising financial counsellors) and one Trustee to represent the Minister.

(c)
The Minister in her unfettered discretion and without being obliged to give any reason for so doing may at any time and from time to time by Deed:
(i) remove any Trustee of the Trust, or

(ii) appoint any new Trustee or Trustees in place of any Trustee who is removed from Trusteeship or who resigns.

(d)
A Trustee of this Deed may at any time resign as a Trustee in accordance with clause 10 (e) (iii).

(e)
The office of a Trustee shall be vacated if a Trustee:
(i)   becomes bankrupt or makes any arrangement or composition with his creditors generally,

(ii)   becomes of unsound mind,

(iii)   is removed from office or resigns his office by notice in writing to the remaining Trustees or Trustees, or if none remains, to the Minister,

(iv)   is absent from four consecutive meetings of the Trustees and the other Trustees unanimously pass a resolution that such Trustee shall be removed from office PROVIDED THAT a Trustee faced with removal shall have the right to be heard by the other Trustees before a vote is taken.

(f)
A Trustee shall hold office for two years from the date of appointment and shall be eligible for reappointment.

(g)
Any contract made, action taken or determination made or to be made by the Trustees shall be by a majority decision, and shall bind the Trustees as if it were a unanimous decision.

(h)
All acts done by any meeting of the Trustees or of a committee of Trustees or by a person acting as a Trustee are, notwithstanding that it is afterwards discovered that there was some defect in the appointment of a person to be a Trustee or a member of the committee or to act as a Trustee, or that the person so appointed had vacated his office, as valid as if the person had been duly appointed and was qualified to be a Trustee or to be a member of the committee, or had not vacated his office (as the case may be).

11. RECEIPTS BY TRUSTEES

The receipt in writing of the Trustees for all money or other real or personal property paid or transferred to the Trustees shall effectively discharge the person or authority paying or transferring the same from being concerned to see to the application thereof.

12. INDEMNITY OF TRUSTEES

(a)
A Trustee shall not be answerable for any losses except losses arising from the Trustee’s own negligence or wilful default, nor shall a Trustee be answerable for the acts or defaults of one or more co-Trustees or for an act done bona fide in conformity with the decisions of the Trustees.

(b)
The Trustees shall not be liable for the negligence or wilful default of a solicitor, banker, accountant or other agent employed bona fide by the Trustees.

(c)
A Trustee shall be indemnified against all liabilities incurred in execution of the duties of the Trustee, other than when they arise from the Trustee’s negligence or wilful default, and shall have a lien on the Trust Fund for that indemnity.

13. COMMITTEES

(a)
Subject to this clause, the Trustees may by instrument in writing delegate any of their powers, duties and obligations conferred or created under this Deed to a committee or committees consisting of at least three Trustees.

(b)
The Trustees may by instrument in writing revoke wholly or in part any delegations under this clause.

(c)
The Trustees may vary the membership of a committee from time to time as they see fit and may nominate one or more Trustees who may act in the absence of a Trustee appointed to such committee and who for that purpose shall be deemed to have been delegated the powers, duties and obligations referred to in clause 13 (a).

(d)
The Trustees may not delegate their powers, duties and obligations to determine which organisations are to receive funds in accordance with clause 3 hereof, this power of delegation and any function which is a duty imposed on the Trustees by the Trustee Act 1925 of New South Wales or by any other law.

(e)
A committee to which powers have been delegated under clause 13 (a) shall exercise those powers in accordance with any directions and subject to such conditions which the Trustees may specify and a power so exercised shall be deemed to have been exercised by the Trustees.

(f)
The Trustees shall appoint one member of each committee to be the chairperson of that committee (in this clause called “the Chairperson”).

(g)
Where at a meeting of a committee the Chairperson is not present within ten minutes of the time appointed for the holding of a meeting or is unable or unwilling to act, the members present may elect one of their number to chair that meeting.

(h)
A committee may meet and adjourn as it thinks proper.

(i)
The quorum at a meeting of a committee shall be one half of the total number of members of the committee or, if that is not a whole number, the next highest whole number.

(j)
Questions arising at a meeting of a committee shall be determined by a majority of votes of the members present and voting.

(k)
In the case of an equality of votes, the Chairperson has a casting vote in addition to a deliberative vote.

(l)
A person chairing a meeting who is not the Chairperson shall not have a casting vote.

(m)
Except as otherwise specifically provided in this Deed or directed by the Trustees the meetings and proceedings of a committee shall be governed by the provisions contained in this Deed regulating the meetings and proceedings of the Trustees.

(n)
Notwithstanding any delegation under this clause, the Trustees may continue to exercise any function delegated.

14. SECRECY

(a)
A person who is or has been a Trustee shall not either directly or indirectly make a record of, divulge or communicate information concerning the affairs of a person which was acquired through the firstnamed person’s office or employment under or for the purposes of this Deed, unless the information is recorded, divulged or communicated:
(i)   in the performance of a function or the exercise of a power under this Deed,

(ii)   when the person is communicating for the purposes of an Act or this Deed with a person charged with or employed in the administration of such Act,

(iii)   when the person is giving evidence or producing a document to a person or body which is entitled to hear or determine an application for a licence under an Act or an appeal from or with respect to such an application,

(iv)   when the person is giving evidence or producing a document to a court of law which is hearing any criminal or civil proceedings connected with or arising under this Deed or an Act,

(v)   when it is requested by and provided to an agency of the Commonwealth of Australia or a State of the Commonwealth for the purpose of an investigation by the agency into a breach or an alleged breach of a law of the Commonwealth or a State of the Commonwealth, or

(vi)   with the written authority of the second-named person.

(b)
Where the Trustees enter into a contract with a person by which the person is employed in or concerned with the administration of the Trust, the Trustees shall in the contract require the person:
(i) to be bound by and observe the provisions of clause 14 (a) in the same manner and to the same extent as if the person were a Trustee, and

(ii) if the person enters in turn into a subcontract with a third person, to be bound by and observe the provisions of this clause in the same manner and to the same extent as if the person were the Trustee and the third person were the person.

15. WINDING UP

(a)
The Trust may be terminated at any time by the Minister or by order of the Supreme Court of New South Wales (“the Court”).

(b)
Upon the termination of the Trust created by this Deed all the moneys, investments and property then forming the Trust Fund shall after the payment of all expenses and liabilities be disbursed to such community based non-profit organisations, which provide financial counselling in the State of New South Wales, which in the opinion of the Minister or the Court (as the case may be) share similar objects as those of the Trust in such shares and proportions and on such conditions as may be determined by the Minister in her absolute discretion or the Court (as the case may be).

16. SERVICE OF NOTICES

(a)
For the purposes of this Deed, a notice may be served upon any Trustee:
(i) personally or by sending it by post to the Trustee at the Trustee’s address shown in the register of Trustees, or

(ii) by sending it by facsimile to the facsimile number of the Trustee (if any) nominated by the Trustee for that purpose,
or if the Trustee notifies another address or facsimile number then to that address or facsimile number.

(b)
Where a document is sent to a person by properly addressing, prepaying and posting to the person a letter containing the document, the document shall, unless the contrary is proved, be deemed for the purposes of this Deed to have been served on the person at the time at which the letter would have been delivered in the ordinary course of post.

(c)
A facsimile shall be deemed to be received on production of a transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the facsimile number of the recipient.

17. VARIATION OF TRUSTS

(a)
The Trustees may at any time and from time to time by deed vary all or any of the trusts, provisions, terms and conditions contained in this Deed (as varied from time to time by any previous Deed) PROVIDED THAT the prior written consent of the Minister is obtained and PROVIDED FURTHER THAT any such variations:
(i) shall not be in favour of or result in any benefit to the Settlor or Trustees or any of them,

(ii) shall not alter the objects of the Trust expressed in clause 3 or any of the provisions of clause 15.

(b)
In this clause “vary” includes revoke, add to or amend and “variation” has a corresponding meaning.

(c)
The provisions of this Deed shall not be capable of being varied otherwise than as expressly herein provided.

IN WITNESS WHEREOF these presents have been duly executed the day and year first hereinbefore written.

Appendix 1

(Clause 5 (l))

Form of appointment of proxy

I, ............................................................

(full name)

of ............................................................

(address)

hereby appoint ............................................................

(full name of proxy)

of ............................................................

(address)

to be my proxy to vote for me on my behalf at the Trustees meeting of the Financial Counselling Trust Fund to be held on the ..... day of ......................... 19.. and at any adjournment of that meeting.

...................................
Signature of Trustee appointing proxy

Date ..............................

NOTE:

A proxy vote may not be given to a person who is not a Trustee of the Financial Counselling Trust Fund.

Historical notes

The following abbreviations are used in the Historical notes:

Am	amended	LW	legislation website	Sch	Schedule
Cl	clause	No	number	Schs	Schedules
Cll	clauses	p	page	Sec	section
Div	Division	pp	pages	Secs	sections
Divs	Divisions	Reg	Regulation	Subdiv	Subdivision
GG	Government Gazette	Regs	Regulations	Subdivs	Subdivisions
Ins	inserted	Rep	repealed	Subst	substituted

Table of amending instruments

Credit (Savings and Transitional) Regulation 1984 (formerly Credit Regulation 1984) published in Gazette No 147 of 19.10.1984, p 5100 (and see Gazette of 26.10.1984) and amended in Gazettes of 28.2.1985, 9.8.1985, 27.9.1985, 20.12.1985, 15.8.1986, 23.12.1988, 9.7.1993, 27.8.1993, 6.5.1994, 17.6.1994 and Gazette No 83 of 25.7.1997, p 5684 and as follows:

2007
No 94
Miscellaneous Acts (Local Court) Amendment Act 2007. Assented to 13.12.2007.
Date of commencement of Sch 1.22, 6.7.2009, sec 2 and 2009 (314) LW 3.7.2009.

2008
No 62
Statute Law (Miscellaneous Provisions) Act 2008. Assented to 1.7.2008.
Date of commencement of Sch 2.16, assent, sec 2 (2).

Table of amendments

Cl 1
Am 25.7.1997.
Cl 2A
Ins 25.7.1997.
Cl 3A
Ins 28.2.1985. Am 23.12.1988.
Cl 4
Am 27.9.1985; 20.12.1985.
Cl 6
See erratum 26.10.1984.
Cl 6A
Ins 9.7.1993.
Cl 8
Am 28.2.1985.
Cl 14A
Ins 15.8.1986. Am 2008 No 62, Sch 2.16 [1].
Cl 18A
Ins 15.8.1986.
Cl 23
Am 2007 No 94, Sch 1.22.
Cl 26
Am 28.2.1985.
Cl 26A
Ins 17.6.1994.
Cl 27
Am 28.2.1985. Subst 15.8.1986. Am 2008 No 62, Sch 2.16 [1].
Cl 28
Ins 28.2.1985. Am 9.8.1985.
Cl 29
Ins 27.8.1993.
Sch 1

Form 1
See erratum 26.10.1984.
Form 7
See erratum 26.10.1984.
Form 11
See erratum 26.10.1984.
Form 12
Ins 17.6.1994. Am 2008 No 62, Sch 2.16 [2].
Sch 2
Am 28.2.1985.
Sch 7
Am 15.8.1986; 9.7.1993; 6.5.1994.
Sch 8
Ins 27.8.1993.