Western Australian Repealed Acts Western Australian Repealed ActsThis legislation has been repealed.
(1) Enforcement of
credit contract. A credit provider must not begin enforcement proceedings
against a debtor in relation to a credit contract unless the debtor is in
default under the credit contract and —
(a) the
credit provider has given the debtor, and any guarantor, a default notice,
complying with this section, allowing the debtor a period of at least 30 days
from the date of the notice to remedy the default; and
(b) the
default has not been remedied within that period.
Maximum penalty — 50 penalty units.
(2) Enforcement of
mortgage. A credit provider must not begin enforcement proceedings against a
mortgagor to recover payment of money due or take possession of, sell, appoint
a receiver for or foreclose in relation to property subject to a mortgage,
unless the mortgagor is in default under the mortgage and —
(a) the
credit provider has given the mortgagor a default notice, complying with this
section, allowing the mortgagor a period of at least 30 days from the date of
the notice to remedy the default; and
(b) the
default has not been remedied within that period.
Maximum penalty — 50 penalty units.
(3) Default notice
requirements. A default notice must specify the default and the action
necessary to remedy it and that a subsequent default of the same kind that
occurs during the period specified in the default notice for remedying the
original default may be the subject of enforcement proceedings without further
notice if it is not remedied within the period.
(3A) Combined notices.
Default notices that may be given under subsections (1) and (2) may be
combined in one document if given to a person who is both a debtor and a
mortgagor.
(4) When default
notice not required. A credit provider is not required to give a default
notice or to wait until the period specified in the default notice has
elapsed, before beginning enforcement proceedings, if —
(a) the
credit provider believes on reasonable grounds that it was induced by fraud on
the part of the debtor or mortgagor to enter into the credit contract or
mortgage; or
(b) the
credit provider has made reasonable attempts to locate the debtor or mortgagor
but without success; or
(c) the
Court authorises the credit provider to begin the enforcement proceedings; or
(d) the
credit provider believes on reasonable grounds that the debtor or mortgagor
has removed or disposed of mortgaged goods under a mortgage related to the
credit contract or under the mortgage concerned, or intends to remove or
dispose of mortgaged goods, without the credit provider’s permission or
that urgent action is necessary to protect the mortgaged property.
(5) Non-remedial
default. If the credit provider believes on reasonable grounds that a default
is not capable of being remedied —
(a) the
default notice need only specify the default; and
(b) the
credit provider may begin the enforcement proceedings after the period of 30
days from the date of the notice.
(6) Other law about
mortgages not affected. This section is in addition to any provision of any
other law relating to the enforcement of real property or other mortgages and
does not prevent the issue of notices to defaulting mortgagors under other
legislation. Nothing in this section prevents a notice to a defaulting
mortgagor under other legislation being issued at the same time, or in the
same document, as the default notice under this section.
Note:
By virtue of
section 161(2), a notice may contain information required to be given under
other legislation or be included in a notice given under other legislation.