Lending of Money Act 1915
[Long Title Amended by No. 103 of 1995, s. 7 and Sched. 3 ]An Act to amend the law with respect to the lending of money otherwise than for consumer credit
[Royal Assent 15 November 1915]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART I - [Part I Heading inserted by 3 & 4 Geo. VI No. 44, s. 2 ]Money-lending transactions
1. Short title and commencement
(1) This Act may be cited as the Lending of Money Act 1915 .(2) This Act shall come into operation on 1st January 1916.
[Section 1A Inserted by No. 103 of 1995, s. 7 and Sched. 3 ](1) [Section 1A Subsection (1) amended by No. 63 of 1996, s. 6 ]In this section –application date means –(a) in the case of a contract made by a credit provider in respect of whom an order under sections 5 and 6 of the Consumer Credit (Tasmania) Act 1996 is in force, the date on which the order took effect; or(b) in the case of any other contract, 1 March 1997;continuing credit contract means a contract for the lending of money under which –(a) multiple advances of credit are contemplated; and(b) the amount of available credit ordinarily increases as the amount of credit is reduced;deferred commencement date means –whichever first occurs.(a) the commencement of the first complete statement period, as mentioned in section 32(A) of the Consumer Credit (Tasmania) Code , for the relevant contract after the application date; or(b) the expiration of 3 months after that date –(2) This Act applies only to a contract for the lending of money where the contract was made –(a) before the application date; or(b) after that application date in a case where the offer by the lender or borrower to enter into the contract was made before that date.(3) Where a continuing credit contract was subject to this Act immediately before the application date, this Act ceases to apply to the contract on the deferred commencement date.(4) This Act continues to apply to any thing done or omitted to be done before the deferred commencement date in respect of a continuing credit contract to which this Act applied before that date.
2. In proceedings for money lent, court may reopen transaction
(1) Where proceedings are taken in any court by any person for the recovery of any money lent or for the enforcement of any agreement or security made or taken in respect of money lent, and it appears to such court that –the court may reopen the transaction, and take, or direct to be taken, an account between the lender of the money and the person sued.(a) the interest charged in respect of the sum actually lent is excessive;(b) the amounts charged for expenses, inquiries, fines, bonus, premiums, renewals, or any other charges, are excessive; or(c) in either of such respects the transaction is harsh and unconscionable, or is otherwise such that a court of equity would grant relief –(2) [Section 2 Subsection (2) amended by No. 33 of 1974, s. 2 ]The court may –(a) notwithstanding any statement or settlement of account or any agreement purporting to close previous dealings and create a new obligation, reopen any account already taken between such persons;(b) relieve the person sued from payment of any sum in excess of the sum adjudged by the court to be fairly due in respect of such principal, interest, and charges as the court, having regard to the risk and all the circumstances, deems reasonable;(c) if any such excess has been paid, or allowed in account, by the debtor, order the creditor to repay it;(d) set aside, either wholly or in part, or revise or alter, any security given or agreement made in respect of the money lent; and(e) if the lender of the money has parted with the security, order him to indemnify the borrower or other person sued.(3) Any court in which proceedings might be taken for the recovery of money lent shall have power, notwithstanding any provision or agreement to the contrary, to entertain any application under this Act by the borrower or surety or other person liable, notwithstanding that the time for repayment of the loan or any instalment thereof may not have arrived.(4) No person shall be entitled to apply to the court under subsection (3) unless application is made within 12 months of the transaction being finally closed.(5) On any application relating to the admission or amount of a proof in respect of money lent, in any bankruptcy proceedings, the court or a judge may exercise the like powers as may be exercised under this section where proceedings are taken for the recovery of money lent.(6) Where it appears to the court that any person other than the person lending the money has shared in the profits of, or has any beneficial interest, prospectively or otherwise, in the transaction, the court may cite such person as a party to the case, and may make such order in respect to him as it deems fit.(7) The foregoing provisions of this section shall –(a) apply to any transaction which whatever its form is substantially one of money-lending;(b) not affect the rights of any bona fide assignee or holder for value without notice; and(c) not derogate from the existing powers or jurisdiction of any court or judge.(8) For the purposes of this section, all such orders may be made and directions given by the court as the court deems necessary or proper for the effectual carrying out of the provisions contained in this section.
3. Penalty for false inducement to borrow
[Section 3 Amended by No. 55 of 1965, s. 5 ][Section 3 Amended by No. 43 of 1991, s. 5 and Sched. 1 ]No person shall by any false, misleading, or deceptive statement, representation, or promise, or by any dishonest concealment of material facts, induce any other person to borrow money or to agree to the terms on which money is, or is to be, borrowed.Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years, or both.
PART II - [Part II Heading inserted by 3 & 4 Geo. VI No. 44, s. 2 ][Part II Heading amended by No. 6 of 1987, s. 4 ]Limitation of commission, &c., on loans[Section 4 Repealed by No. 6 of 1987, s. 5 ]. . . . . . . . [Section 4A Repealed by No. 27 of 1976, s. 3 ]. . . . . . . . [Section 5 Repealed by No. 6 of 1987, s. 6 ]. . . . . . . . [Section 5A Repealed by No. 6 of 1987, s. 7 ]. . . . . . . .
6. Commission, &c., on loans not to exceed 2½ per cent
[Section 6 Inserted by 16 Geo. V No. 39 ][Section 6 Amended by No. 55 of 1965, s. 5 ][Section 6 Amended by No. 33 of 1974, s. 5 ][Section 6 Amended by No. 43 of 1991, s. 5 and Sched. 1 ]No person shall –[Section 7 Repealed by No. 6 of 1987, s. 8 ]. . . . . . . . [Section 8 Repealed by No. 6 of 1987, s. 9 ]. . . . . . . .any sum of money by way, or under pretence, of any bonus, commission, or premium for the lending, or negotiating or renewing the loan of, any moneys to or for such other person, exceeding 2½ per cent of the amount of such moneys.(a) demand, receive, or take from any other person;(b) deduct from, or retain out of, any moneys which he has agreed to lend, or which he owes, to such other person; or(c) in any account with such other person, debit such other person with, or take credit to himself for –Penalty: Fine not exceeding 20 penalty units.
9. Penalty sections not to affect discretion of court or judge as to reopening transactions and granting relief
[Section 9 Inserted by 16 Geo. V No. 39 ][Section 9 Amended by 25 Geo. V No. 78 ][Section 9 Amended by No. 6 of 1987, s. 10 ]Nothing in section 6 shall affect the discretion conferred on any court or judge by section 2 in determining any question arising under that last-mentioned section as to the amount of any charges in respect of any money lent.
PART III - Money-lenders[Part III Inserted by 3 & 4 Geo. VI No. 44, s. 2 ]
[Section 10 Inserted by 3 & 4 Geo. VI No. 44, s. 2 ][Section 10 Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ](1) [Section 10 Subsection (1) amended by No. 44 of 1957, s. 2 ]In this Part, unless the contrary intention appears, the expression money-lender includes every person whose business is that of money-lending, or who advertises or announces himself or holds himself out in any way as carrying on that business; but does not include –(a) any pawnbroker in respect of business carried on by him in accordance with the provisions of the Pawnbrokers Act 1857 ;(b) any registered society within the meaning of the Friendly Societies Act 1888 , or any society registered or having rules certified under that Act or under the Financial Institutions (Tasmania) Code ;(c) any person carrying on in good faith –(i) the business of banking or insurance; or(ii) any business not having for its primary object the lending of money, in the course of which, and for the purposes whereof, he lends money;(d) any incorporated company performing and discharging the acts and duties of an executor, administrator, trustee, attorney, or agent under power and authority in that behalf conferred upon it by statute; or(e) any person for the time being exempted from the operation of this Part pursuant to subsection (2) .(2) [Section 10 Subsection (2) inserted by No. 44 of 1957, s. 2 ]The Governor may, by order, exempt from the operation of this Part any person specified in the order.(3) [Section 10 Subsection (3) added by No. 44 of 1957, s. 2 ]An order under subsection (2) –(a) may be expressed to take effect from such date before the date on which the order is made as may be specified in that behalf in the order;(b) has effect according to its tenor; and(c) is a statutory rule within the meaning of the Rules Publication Act 1953 .
[Section 11 Substituted by No. 103 of 1995, s. 7 and Sched. 3 ]A money-lender must –[Section 12 Repealed by No. 103 of 1995, s. 7 and Sched. 3 ]. . . . . . . .(a) on request by a borrower at any reasonable time, provide the borrower, any surety for the borrower or any other person liable for the repayment of a loan with –(i) full particulars of the payments made by or on behalf of the borrower in respect of the loan; and(ii) the amount remaining owing in respect of the loan; and(iii) a copy of any document relating to the loan or any security for the loan; and(b) on selling, assigning, transferring or assuring any debt, promissory note, bill of exchange, chose in action or security taken or received by the money-lender in the course of business as such, give to the purchaser, assignee or transferee full particulars in writing of the transaction.Penalty: Fine not exceeding 20 penalty units.
13. Form of money-lenders' contracts
[Section 13 Inserted by 3 & 4 Geo. VI No. 44, s. 2 ](1) [Section 13 Subsection (1) amended by No. 45 of 1963, s. 3 ]Subject to section 13A , no contract for the repayment by a borrower of money lent to him, or to any agent on his behalf, by a money-lender after the commencement of this section, or for the payment of interest on money so lent, and no security given by the borrower or any such agent to any money-lender in respect of any such contract or loan, shall be enforceable unless –and no such contract or security shall be enforceable if it is proved that the note or memorandum required by this section was not signed by the borrower before the money was lent or before the security was given, as the case may be.(a) a note or memorandum in writing of the contract is made and signed personally by the borrower; and(b) the money-lender sends or delivers a copy thereof, or causes a copy thereof to be sent or delivered, to the borrower by prepaid registered letter through the post addressed to the borrower within 7 days of the making of the contract –(2) [Section 13 Subsection (2) amended by 11 & 12 Geo. VI No. 85, s. 4 ]The note or memorandum shall contain all the terms of the contract, and, in particular, shall show –(a) the date of the making of the loan;(b) the amount of the principal of the loan;(c) the interest charged on the loan expressed in terms of a rate per cent per annum; and(d) particulars of any sums of money demanded, received, or taken from, or debited or charged to, the borrower, or deducted from the amount of the loan, by way of bonus, commission, or premium for the making or negotiating or renewing of the loan.(3) No such note or memorandum, or copy thereof, shall be insufficient by reason only that in such note or memorandum or copy there is an omission, or an incorrect or insufficient description, or a misdescription, in respect of the particulars required to be contained in such note, memorandum, or copy, if the court before which the enforceability of any such contract or security comes in question is satisfied that such omission, incorrect, or insufficient description, or misdescription, was accidental or due to inadvertence, and was not of such a nature as to be liable to mislead or deceive any person to his prejudice or disadvantage.(4) [Section 13 Subsection (4) added by 11 & 12 Geo. VI No. 85, s. 4 ][Section 13 Subsection (4) amended by No. 55 of 1965, s. 5 ][Section 13 Subsection (4) amended by No. 43 of 1991, s. 5 and Sched. 1 ]A money-lender shall preserve the note or memorandum signed by the borrower in connection with every loan made by him for a period of not less than 3 years from the date of the making of the loan.Penalty: Fine exceeding 2 penalty units but not exceeding 20 penalty units.
13A. Certain unenforceable contracts, &c., to be enforceable
[Section 13A Inserted by No. 45 of 1963, s. 4 ](1) The provisions of this section apply to any loan, contract, or transaction that, whatever its form may be, is substantially one of money-lending by a money-lender (whether made or entered into before or after the date of the commencement of this section), but do not apply to –(a) such a loan, contract, or transaction in respect of which proceedings in any court for the recovery or enforcement thereof have been taken or commenced before that date; or(b) any contract of guarantee entered into or given in respect of a loan to which the provisions of this section do not apply.(2) [Section 13A Subsection (2) substituted by No. 103 of 1995, s. 7 and Sched. 3 ]Notwithstanding any other provision of this Act, in any proceedings relating to a loan, contract or transaction to which this section applies in any court in which it is established that the money-lender neglected or failed to comply, or to ensure compliance by any other person, with the requirements of section 13 , the court, if it is satisfied that the money-lender, in the circumstances at the date of –was acting honestly and ought fairly to be excused for his or her neglect or failure, may, in giving judgment or making any order in those proceedings, impose such conditions and give such directions as it considers just and equitable.(a) the making of the loan or of the entering into of the contract or transaction; or(b) the taking or giving of the security or guarantee in respect of the loan, contract or transaction –(3) Without limiting the generality of its powers under subsection (2) , the court may do all or any of the following things, namely:(a) Exercise in relation to any loan, contract, or transaction to which this section applies the like powers as it may exercise under section 2 (2) in relation to loans to which that section applies;(b) Confirm or declare to be valid and enforceable in whole or in part as from the date specified in the judgment or order any contract for repayment of money lent or any security given in respect of any such contract or guarantee given with respect thereto and vary, alter, or amend any covenant, condition, or agreement contained in such a contract, security, or guarantee;(c) Relieve the borrower or guarantor from, or impose on the borrower or guarantor, the obligation to repay the whole or part of the amount of the principal of the loan with interest at the rate specified in the judgment or order or without interest, and make such orders relating to the other obligations of the guarantor as the court deems fit;(d) Postpone for such period as it thinks fit the time for the repayment of the loan and the time before which the security or guarantee shall not be enforced, and order any such repayment to be made with interest at the rate specified in the judgment or order or without interest by such instalments, at such intervals, or in such amounts as the court may direct; and(e) Make any further order incidental or ancillary to any judgment or order of the court, or any conditions or directions it may impose or give in relation thereto.(4) In any proceedings referred to in subsection (2) , the court may order that any guarantor or other person liable be joined as a party to the proceedings in such manner and upon such terms as the court may direct.(5) A court in which proceedings might be taken for the recovery of money lent has and may, on the application of the money-lender, exercise the like powers as could be exercised in proceedings referred to in subsection (2) , and the court may, notwithstanding any provision or contract to the contrary, entertain any such application, notwithstanding that the time for the repayment of the loan or of any instalment thereof has not arrived.
14. Name of borrower not to be published
[Section 14 Inserted by 3 & 4 Geo. VI No. 44, s. 2 ]No person shall publish in any newspaper the name, address, or occupation of any borrower in respect of a loan to whom any proceedings under this Act are heard in any court.
[Section 15 Inserted by 3 & 4 Geo. VI No. 44, s. 2 ][Section 15 Amended by No. 103 of 1995, s. 7 and Sched. 3 ]The Governor may make regulations for the purposes of this Act, and, in particular, for –(a) . . . . . . . .(b) the method of calculating the rate per cent per annum in cases where the interest charged in respect of any loan by a money-lender is not expressed in terms of a rate per cent;(c) the cases in which an examination or inspection of the transactions, or any specified transaction, of any money-lender may be directed by the Attorney-General and the method by which such examination or inspection shall be conducted.
16. Time within which prosecution may be brought
[Section 16 Inserted by 11 & 12 Geo. VI No. 85, s. 5 ]Proceedings in respect of any offence against this Act may be taken at any time within 3 years after the offence was committed.