Thinking | 16 August 2009

National Credit Code Reform – responsible lending unsuitability assessment obligations to apply from 1 January 2010 to non-ADIs and non-RFCs and regulations released

In a surprising about face, the Minister for Financial Services, Superannuation and Corporate Law, Chris Bowen MP, announced last Friday that the conduct of unsuitability assessments under the responsible lending conduct obligations, which were recently pushed back to 1 January 2011 (see our update of 11 August 2009), have now been reversed back to 1 January 2010. The revision does not apply to Authorised Deposit-taking Institutions (ADIs)and Registered Financial Corporations (RFCs).

Selected changes to the National Credit Code (NCC) have also been pushed back from 1 January 2010 to 1 July 2010.The following table summarises the current position:

Code application Consider whether the Code applies to your circumstances.
Audit the lease periods Consider whether your lease will expire imminently, or whether it still has at least 12 months to run. Depending on the term of your existing lease, workshop your best and worst case scenarios. For example, if your lease expires in less than 12 months, consider whether it will be more advantageous for you to negotiate an extension of the lease with a rent reduction, or whether you will vacate the premises when the lease expires.
Move now on changes If your lease will soon expire, consider whether you want to take this opportunity to reduce floor space. Consider discussing with your landlords the possibility of relocating to another premises in the building or shopping centre if other space becomes vacant.
Data gatheringGather your financial and sales data and make sure you have a good grasp of your losses. Be prepared to produce information which demonstrates your eligibility for the JobKeeper programme as well as data showing the financial stress suffered by you. This information will be required to calculate any proportional rent relief.
What is happening in your building? Has the landlord closed access to your building? If your lease is a commercial or industrial lease, consider the percentage of staff who are working from home. Has the landlord ceased the use of any amenities in the building? These considerations can assist with calculating your rent relief package.
Start a conversation Talk to your landlord and have open and frank discussions. Have regard to the fact that your landlord also has overheads to pay - in some cases, your rent is the landlord’s main stream of income.

Draft regulations for the NCC were also released on Friday with comment invited until 9 September 2009. The draft Regulations include:

  • National Consumer Credit Protection Regulations 2009
  • National Consumer Credit Protection (Transitional and Consequential Provisions) Regulations 2009
  • National Consumer Credit Protection (Fees) Regulations and
  • Electronic Transactions Amendment Regulations 2009.

Assistance

Having assisted many financial services providers obtain their Australian Finance Services Licence under a similar regime, the Hall & Wilcox Financial Services and Banking & Finance teams are able to:

  • assist in making a submission on the draft regulations
  • provide specific advice as to how the National Consumer Credit legislation and the responsible lending obligations will apply to you
  • assist in preparing Australian Credit Licence applications including all necessary proof documents in accordance with ASIC requirements and
  • assist in drafting template documents which comply with all of the disclosure requirements contained in the legislation and draft regulations.

Contact

Harry New

Harry leads our financial services team and focuses extensively on financial services law and corporate advisory.

John Bassilios

John has broad experience in financial services, funds management, blockchain, corporate and corporate law.

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