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March 19, 2010

AMI Conference

Langes+ Partners Rob Surman and Patrick Dwyer and Associate Elaine Cheung will be at the AMI Conference in Canberra next week.

Please say hello. If you want to talk to them about a particular issue, give them a call and arrange a meeting while you’re there.

Posted 19th March 2010 by admin in Mutuals

March 16, 2010

Consumer credit hardship threshold reduced

The new threshold is $350,240 (down from $374,330). The next change will be on 13 April 2010.

Further information is available at Hardship Threshold.

From 1 July 2010 (when the National Credit Law starts) the threshold will be fixed at $500,000.

Posted 16th March 2010 by David Jacobson in Legal

March 7, 2010

Favourable result in Consumer Credit Code Civil Penalty Application

Shortly prior to its merger with Community CPS Australia Ltd, United Credit Union Ltd made a civil penalty application to the State Administrative Tribunal of Western Australia in relation to contraventions of 7 key requirements of the Consumer Credit Code. United asked that the Tribunal also take into account contraventions of 13 non-key requirements of the Code.

The contraventions were identified during due diligence in preparation for the merger. Overall they affected in excess of 17,000 credit contracts. Upon the merger taking effect Community CPS became the successor in law to United, and continued the application in that capacity.

United, and Community CPS as its successor, offered to make ex gratia payments of compensation to borrowers affected by three of the contraventions.

The Commissioner for Consumer Protection intervened in the application to represent the interests of affected borrowers.

The application was heard by the President of the State Administrative Tribunal, His Honour Justice John Chaney, on 4 March 2010. His Honour delivered an oral judgment at the conclusion of the hearing.

His Honour made declarations that United had contravened key requirements of the Consumer Credit Code. However, he found that in all the circumstances it was inappropriate to impose any civil penalty. His Honour found that:

• The contraventions by United were not deliberate. By and large they arose from system failures.
• Community CPS was not responsible for the conduct which constitutes the contraventions, although it accepted legal responsibility for the consequences of that conduct.
• The conduct of Community CPS was ‘commendable’. It had acted in a ‘very responsible way’ and had accepted its responsibilities for compliance with the Code in a way which one would hope to be able to expect from all financial institutions.
• The voluntary payment of compensation by Community CPS was an important factor to be taken into account in deciding whether a civil penalty should be imposed, as was the expense which Community CPS had incurred in dealing with the matter.

Langes+ acted for United and Community CPS in relation to the application, and partner Shannon Adams represented them before the Tribunal.

Posted 7th March 2010 by David Jacobson in Credit unions, Legal, Risk management

Community interest companies

Whilst I had heard of social businesses before, I only recently heard the expression “community interest companies”. Roger Pekin used it while talking about Food Connect.

Interestingly, the UK has a regulator for community interest companies (CIC’s).

It describes CIC’s as follows:

Community Interest Companies (CICS) are limited companies, with special additional features, created for the use of people who want to conduct a business or other activity for community benefit, and not purely for private advantage. This is achieved by a “community interest test” and “asset lock”, which ensure that the CIC is established for community purposes and the assets and profits are dedicated to these purposes. Registration of a company as a CIC has to be approved by the Regulator who also has a continuing monitoring and enforcement role.

Posted 7th March 2010 by David Jacobson in Legal, Mutuals

March 1, 2010

ASIC term deposit review report

ASIC has released the results of its review of the Australian term deposit market.

ASIC’s review looked at the period 1 January 2008 to 27 February 2009 and covered eight authorised deposit-taking institutions (ADIs) holding over 80 per cent of Australia’s total term deposits.

ASIC’s review found that seven out of the eight ADIs reviewed promoted their term deposits by advertising only the highest term deposit rates, while maintaining lower rates for all other deposit periods. The periods on which the advertised higher rates were offered varied over time.

In ASIC’s opinion, this ‘dual pricing’ coupled with the potential for term deposits to rollover by default if the investor does not take action, creates a risk that a retail investor could inadvertently end up in a much lower interest term deposit.

ASIC’s report contains recommendations  for improvements to advertising, disclosure of interest rates and grace periods designed to maximise the disclosure to investors about what happens when their term deposit matures.

The recommendations are:

  • ADIs should review their term deposit advertising to ensure that, where dual pricing practices operate, investors are not given the impression that good or competitive returns are available across all deposit terms when this may not be the case.
  • ADIs that have high and low term deposit interest rates should review their disclosure documents to ensure that there is clear and effective disclosure that:
    A. dual pricing exists; and
    B. because term deposits have the ability to roll over automatically without the investor taking active steps, there is a significant risk of rollover from a high to a low interest rate.
  • This disclosure should occur in:
    (a) term deposit application forms;
    (b) Product Disclosure Statements (PDSs) or terms and conditions booklets; and
    (c) pre-maturity and post-maturity letters.
  • Investors should be made aware of the interest rate that will apply on their new term deposit before it rolls over, so that they have the
    longest possible period (the pre-maturity period and the grace period) to intervene if they wish. Investors who would roll over to a low interest rate should be made aware that better interest rates are available from the same ADI for comparable periods.
  • These disclosures should be made clearly and in the prematurity communication with investors. Although enclosing interest rate
    schedules with pre-maturity letters could potentially achieve this, ASIC considers that investors are more likely to read the actual letter rather than a potentially lengthy and detailed interest rate schedule.
  • ADIs should update their term deposit renewal communication so that they clearly disclose the actual or indicative interest rate that will
    apply to the new term deposit. Where the interest rate indicated is subject to last minute changes by the ADI, this fact should also be clearly disclosed.
  • It is important for investors to have, and be aware of, the grace period that applies when their term deposit rolls over by default. ASIC also considers that the grace period should be of sufficient length to allow the investor to act if they so choose.

It is industry best practice to:
A. tell investors about grace periods at every disclosure point, including PDSs/terms and conditions, pre-maturity and post-maturity letters.
B.provide investors with a grace period no shorter than five business days, with industry best practice at 14 days.

ASIC will conduct a follow up review 12 months after the implementation of its recommendations by ADIs.

Posted 1st March 2010 by David Jacobson in Legal