Requirements to be met before credit provider can repossess mortgaged goods
91 Requirements to be met before credit provider can repossess mortgaged goods
A credit provider must not, without the consent of the court, take possession of mortgaged goods if the amount currently owing under the credit contract related to the relevant mortgage is less than 25% of the amount of credit provided under the contract or $10,000, whichever is the lesser.
Criminal penalty: 100 penalty units.
However, the restriction does not apply:
to a continuing credit contract; or
if the credit provider believes on reasonable grounds that the debtor has removed or disposed of the mortgaged goods, or intends to remove or dispose of them, without the credit provider’s permission or that urgent action is necessary to protect the goods.
Subsection (1) is an offence of strict liability.
For strict liability, see section 6.1 of the Criminal Code.
In any proceedings in which it is established that a credit provider has taken possession of mortgaged goods contrary to subsection (1), the burden of establishing that the possession of the goods was lawfully taken by virtue of subsection (2) lies on the credit provider.
Nothing in this section prevents a credit provider from accepting the return of goods under section 85.
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