Disclosure before entering a contract
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A credit provider must provide a consumer with a credit guide as soon as practicable after it becomes apparent to the credit provider that it is likely to enter into a credit contract with the consumer (NCCP Act s 126).
The credit guide must:
be in writing;
specify the credit provider’s name, contact details and Australian credit licence number;
include details regarding complaint handling, including AFCA’s contact details;
disclose the credit provider’s obligations to provide upon request a written copy of an assessment of the suitability of any proposed credit contract; and
advise that the credit provider is prohibited from entering, or increasing the credit limit under, a credit contract that is unsuitable for the consumer.
Key fact sheets
Credit providers are required to provide a key facts sheet about standard home loans and credit cards to prospective borrowers.
A key facts sheet is a simple one-page information sheet that enables consumers to more easily compare like credit products offered by other credit providers.
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If a consumer requests one, a credit provider must provide a key facts sheet containing up-to-date information about the credit provider’s standard home loan (or loans) (NCCP Act s 133AD).
If the credit provider has a website that can be used by a consumer to apply for or make an enquiry about a standard home loan, the website must be capable of being used by the consumer to generate a key facts sheet (NCCP Act ss 133AC–133AE).
A standard home loan is a standard form of credit contract under which credit is provided for the purchase of residential property or to refinance credit that has been provided wholly or predominantly to purchase residential property (NCCP Act s 133AA).
The key facts sheet must be in the form provided in schedule 5 to the NCCP Regulations and contain:
the consumer’s specifications (that is, loan amount, term of home loan, interest type, and lender and product name);
a description of the relevant home loan (including repayment method and frequency, interest rate and personalised comparison rate); and
information about the cost of the loan (including the total amount to be repaid for every $1 borrowed, establishment fees, ongoing fees and amount to be repaid each month and year) (NCCP Act s 133AB).
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All credit card application forms must include a key facts sheet containing up-to-date information about the credit card contract (NCCP Act s 133BC).
A credit provider is prohibited from entering into a credit card contract with a consumer if they have not provided a key fact sheet containing up-to-date information (NCCP Act s 133BD). However, it is permissible for the key facts sheet to contain information that is no longer up-to-date if certain other requirements are met (NCCP Act ss 133BC(3)–(4), 133BD(1)(b)).
The key facts sheet must be in the form provided in schedule 6 to the NCCP Regulations and provide information including a description of the credit card, including the product name and applicable credit limit, minimum repayments, interest on purchases, annual fees and so on.
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Prior to the debtor either entering into a credit contract or making an offer to enter into a credit contract (whichever occurs first), the credit provider must give the debtor a statement disclosing the information set out in section 17 of the NCC (NCC ss 16(1)–(2)).
As this information must also be included in the credit contract, the credit provider can simply provide a copy of the proposed credit contract to the debtor (NCC ss 16(5), 17). Alternatively, the credit provider can provide the information in a separate pre-contractual statement (s 16(5)).
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Before the debtor enters into, or makes an offer to enter into, a credit contract (whichever occurs first), the credit provider must give the debtor a copy of an information statement in the form required by the NCCP Regulations setting out the debtor’s statutory rights and obligations (Form 5: Things You Should know About Your Proposed Credit Contract).
Disclosure before entering a contract
Chapter: 5.7: Understanding credit and finance
Contributor: Stephen Nowicki, Director of Legal Practice, Consumer Action Law Centre
Current as of: 1 September 2024
Law Handbook Page: 377
Next Section: What information should be in a credit contract?
