Lenders typically secure loans by way of a mortgage over real property or as a security interest over a borrower’s or guarantor’s personal property, including personal, business or company assets.

This article provides a guide on the operation of mortgages and security interests and highlights key differences that Lender’s should consider.

Lenders to amend loan agreements to remove “unfair contract terms” to avoid risk of harsh penalties. 

The new “unfair contract terms” provisions came into play on and from 9 November 2023, and captures Lender’s loan agreements and term sheets.

The case of Bellas v Powers [2023] NSW SC involved a dispute over the enforceability of a clause that imposed a higher interest rate on a loan facility in the event of default. The court held that the clause was a penalty as it was extravagant and unconscionable in comparison with the greatest loss that could be proved to have followed from the breach. The term was therefore deemed void and unenforceable.

Since 2020, the Australian Competition and Consumer Commission has introduced amendments to the Competition and Consumer Act 2010 which enable consumer data information to be shared, in order to facilitate the process known as open banking.

At present, Consumer Data Right legislation solely relates to information held by banks and energy companies.  It is anticipated that there will be a further and more significant roll out of legislation impacting the wider financial sector, as well as other sectors within the economy, in the next several years.

Holman Webb Lawyers is currently assisting broker groups, aggregators and software providers in relation to banking Consumer Data Right requests, and is similarly advising accredited data recipients with respect to their entrance into the financial services area, to enable applications for consumer credit.

The process surrounding the release of Consumer Data Right information is developing rapidly, as new technology emerges. There are privacy concerns relating to the management of this information, with detailed legislation and systems having been introduced to enable this information management to occur.

This article provides a brief analysis of the legislative process.  Readers should note that there will undoubtedly be further change, as the Consumer Data Right process gains traction.

Contained within the Privacy Act 1988 and the Privacy (Credit Reporting) Code 2014 is a regime concerning the collection, storage and use of data relating to an individual’s credit’s history and credit worthiness information.

The Office of the Australian Information Commissioner recently conducted a review of the Code and made several recommendations for change, providing a timely reminder of the nature of the Code and the obligations on all parties involved in requests for credit reporting information.

As anticipated, the new Commonwealth Government has indicated there will be regulation of the Buy Now Pay Later (‘BNPL’) industry.  In an announcement made last week, the new financial services minister, Stephen Jones, telegraphed the much anticipated and expected news.

The recent Federal Court of Australia decision in Australia Securities and Investments Commission v Westpac Banking Corporation (Omnibus) [2022] SCA 515, in which Westpac was penalised an amount in excess of $113M, was informative in respect of the way that the Court will proceed in assessing the conduct of financial service providers.

This article is not intended to traverse all the matters considered in that case, but will instead discuss the way the Federal Court approaches issues of unconscionability in the provision of financial services and products, in light of the principles in section 12CC of the Australian Securities and Investments Commissions Act 2001.

It has happened: a company that failed to implement proper cyber security measures in Australia has been taken to court by the regulators, with the company ordered to pay costs of $750,000.

In the matter of the Australian Securities and Investments Commission v RI Advice Group Pty Ltd [2022] FCA 496, the Court found that a financial services provider had breached its licence obligations, and failed to act efficiently or fairly by not having in place adequate risk management systems to cater for risks arising in relation to cyber security.

Buy Now Pay Later (‘BNPL’) is a system of advancing funds to consumers for the purchase of goods and services, with repayments made in regular instalments. The consumer can take possession of the goods or services immediately.

Currently, BNPL advances are unregulated by consumer credit law, as no interest is charged on the advances. 

The National Consumer Credit Protection Act 2009 does not apply, and providers of BNPL finance are not required to meet the compliance requirements of that legislation.

Finance providers obtain a return on BNPL transactions via the collection of merchant fees (paid by vendors to the finance provider at the time of sale) and by recovery of fixed late fees by consumers if they default on their repayment schedule.

The current landscape of regulation in respect of digital payments within Australia is set to change significantly within the coming 12-18 months.  

Part of this change is the prospect of greater codification and regulation of the legal management of the varying types of payment systems - including Buy Now Pay Later (‘BNPL’), cryptocurrency, and mobile telephones; as well as traditional systems such as credit cards and eftpos.