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Commencing Legal Proceedings in the Proper Jurisdiction for Consumer Finance

Sunday, October 30, 2016 - Posted by Philip Harvey

The National Consumer Credit Regulations 2010 Reg 36 - provide that when commencing Court proceedings they must be commenced in the State or Territory where the debtor ordinarily resides.

(3)  Subject to sub-regulation (4), a court proceeding must be brought in a court of the State or Territory where the debtor, mortgagor or guarantor ordinarily resides, if the court proceeding:
(a)  is in relation to:
(i)  a credit contract; or
(ii)  a consumer lease; or
(iii)  a mortgage; or
(iv)  a guarantee;
Regulated under the Act; and
(b)  involves a debtor, mortgagor or guarantor.

Sub-regulation 4 however does permit Court proceedings to be commenced in another State or Territory where the Contract was entered into if the whereabouts of the debtor is not known.

In the January 2016 Systemic Issue Update released by the Financial Ombudsman Service ("FOS") it was highlighted that a FSP who had commenced proceedings in a jurisdiction where the debtor did not reside was required to go back through past proceedings and issue a Notice of Discontinuance or set aside proceedings to correct the issue.

We have noted on several occasions that accounts have been referred to us for collection where there are breaches of The National Consumer Credit Regulations 2010 Reg 36 and the Systemic Issue identified by FOS. We recommend that where you engage an agent or Solicitor to act for you that you take all necessary steps to identify that proceedings are being commenced in the correct jurisdiction to avoid complication in recovering your debt using the legal system.

LCollect is compliant with The National Consumer Credit Regulations 2010 Reg 36 and electronically files documents in most Courts and Territories across Australia on a daily basis.

Please note that this article is not intended to be legal advice.

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