NCCP Notices:

The National Consumer Credit Protection Act (NCCP) establishes a regime that aims to safeguard consumers who seek credit facilities for either personal or commercial purposes. One of the most commonly exercised aspects of the legislative regime concerns the issue, challenge and response to NCCP Notices issued under the Act. This will occur when property is under mortgage and a default on repayment is met by the lending institution with action for the re-possession of that property. Default Notices under the NCCP must comply with the legislative framework of the Act and its regulations. Some of the legislation and regulations that are relevant include the following:

• National Consumer Credit Protection Act 2009 (Cth);
• National Credit Code (which forms part of the Act as schedule 1 to that Act);
• Consumer Credit Legislation Amendment (Enhancements) Act 2012 (Cth); and
• National Consumer Credit Protection Amendment Regulation 2013 (Cth).

According to Richard Williams writing at Mondaq:

“On 24 January 2013, Treasury foreshadowed that certain further changes would be made to hardship procedures prior to commencement of the legislation. In addition, some of the new statutory forms required to be used, in particular those relating to Dishonor of ‘Direct Debit Authority’ and ‘Notice Before Action’ had to be finalised. Importantly, Treasury has indicated that especially in relation to use of new Statutory Forms, transitional arrangements would be needed. In an email to stakeholders from Treasury on Wednesday 13 February 2013 the new forms were released and the position with regard to transitional arrangements was clarified. These matters will be embodied in further regulations to be made, presumably before 1 March 2013.” [1]

Specific forms are provided which must be used for specific notices given to consumers of credit facilities. Although it is unlikely that a credit provider would be unfamiliar with the legal requirements, the first matter which would be investigated by an NCCP solicitor is the statutory compliance of the forms issued to a client. It is sometimes the case that a form may have been issued with some irregularity, and this may ground a basis of challenging any action taken by the credit provider. Some of the irregularities that can be discovered by an NCCP lawyer include matters relating to:

(a) Names of parties misspelt;
(b) Amounts claimed are in dispute;
(c) Inconsistencies in the particulars;
(d) The wrong form is used;
(e) The form is incorrectly executed; and
(f) Notice may have been served on the wrong person or not within time.

The Australian Securities & Investment s Commission is the body which issues credit default notices to parties. There are rules and regulation in relation to:

• How to pay on the NCCP notice;
• What to do if more time is need to raise money to pay on an NCCP notice;
• The effect of payment on an NCCP notice;
• The consequence of failing to pay on an NCCP notice;
• Issues relating to the withdrawal of the NCCP notice; and
• Other incidental issues.

Credit consumers have certain rights when they are issued with a credit infringement notice. A credit infringement notice solicitor will be able to advise his client in relation to the effects or payment and non-payment as well as the likelihood of success in applying for an extension of time to comply with debt obligations, securing a payment plan whereby the debt is paid off in instalments, or ultimately challenging the credit default notice itself. Credit default legal advice will be essential in preparing a strategy through which the client’s interests are secured and any damage is kept to a minimum. A credit notice infringement solicitor should be contacted to review any NCCP Notice and analyse it according to the law and the facts of the given case.

If you wish to make an appointment, please contact us by telephone on (02) 9233 4048 or send an email to info@navado.com. 

[1] Richard Williams, “Australia: Checklist for Changes to the National Credit Code and National Credit Act” Mondaq (updated 5 March 2013) <www.mondaq.com> (accessed 17 December 2013).

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