In the event a borrower fails to make payment on a secured loan regarding personal property, enforcement provisions for Court Orders are found within the Consumer Credit Code.
Once called the Uniform Consumer Credit Code (UCCC) (which was a uniform Act that was enacted across the States and Territories), the Uniform Consumer Credit Code is now called the “National Credit Code” or “NCC” and is a schedule to the National Consumer Credit Protection Act 2009 (Cth) namely the National Consumer Credit Protection Act 2009 – Schedule 1.
The National Credit Code (NCC) applies to credit contracts entered into on or after 1 July 2010.
Where a credit provider is entitled to take possession of mortgaged goods, the Court may make orders for entry to residential premises for the purpose of taking possession. Section 100 of the National Credit Code states:
The court may, on the application of a credit provider that is entitled to take possession of mortgaged goods, authorise the credit provider to enter residential premises for the purpose of taking possession of mortgaged goods.
Additionally, the Court may order that a person who has possession of secured goods (where the credit provider is entitled to possession) must deliver the goods to the credit provider. Section 101 states:
(1) The court may, on the application of a credit provider that is entitled to take possession of mortgaged goods, order a person who has possession of the goods to deliver them to the credit provider at a specified time or place or within a specified period.
(2) The court may, on the application of a credit provider or other person required to deliver goods to a credit provider, by order vary the place at which or time or period within which goods must be delivered to the credit provider.
(3) A person who contravenes an order under this section commits an offence.
It is important that credit providers ensure they comply with the NCC (National Credit Code) as the Act contains penalties for non-compliance and is now regulated by Australian Securities and Investments Commission (ASIC). For more information about the NCC from ASIC Click Here. For information about Compliance and Credit from ASIC click here.
This is not legal advice and you should obtain legal advice about your own particular situation. If you want to obtain a Court Order for Repossession and/or delivery of secured personal property, please contact Kristine Hopkins by email.