Western Australian Consolidated Acts Western Australian Consolidated Acts (1) Before any
hire-purchase agreement is entered into in respect of any goods the owner or,
if there is a dealer, the dealer shall give or cause to be given to the
prospective hirer a statement in writing duly completed in accordance with the
form in the First Schedule Part 1, but where the agreement is entered
into by way of acceptance by the owner of a written offer signed by or on
behalf of the hirer, the provisions of this subsection shall be deemed not to
have been complied with unless the written statement was given to the
prospective hirer before the written offer was so signed and a copy of the
written offer was given to the prospective hirer immediately after it was so
signed.
(1a) A dealer shall
not deliver, or cause or permit to be delivered, to a prospective owner any
offer by or on behalf of a prospective hirer unless that offer —
(a) is
made in writing; and
(b) was
signed by the prospective hirer or a person authorised by him and on his
behalf, after the dealer had given, or caused to be given, to the prospective
hirer or that authorised person a statement in writing duly completed in
accordance with the form in the First Schedule Part 1.
(1b) It is a defence
to a charge arising under subsection (1) or (1a) if the accused
proves that he acted honestly and that in all the circumstances the act or
omission constituting the offence should be excused.
(2) Every
hire-purchase agreement —
(a)
shall be in writing; and
(b)
shall be signed by or on behalf of the hirer and all other parties to the
agreement; and
(c)
shall —
(i)
specify a date on which the hiring shall be deemed to
have commenced; and
(ii)
specify the number of instalments to be paid under the
agreement by the hirer; and
(iii)
specify the amounts of each of those instalments and the
person to whom and the place at which the payments of those instalments are to
be made; and
(iv)
specify the time for the payment of each instalment; and
(v)
contain a description of the goods sufficient to identify
them;
and
(d)
where any part of the consideration is or is to be provided otherwise than in
cash, shall contain a description of that part of the consideration; and
(e)
shall set out in tabular form —
(i)
the price at which at the time of signing the agreement
the hirer might have purchased the goods for cash (in this Act called and
in the agreement to be described as cash price ); and
(ii)
the amount paid or provided by way of deposit (in this
Act called and in the agreement to be described as deposit ) showing
separately the amount paid in money and the amount provided by a consideration
other than money; and
(iii)
any amount included in the total amount payable for
maintenance of the goods (in this Act called and in the agreement to be
described as maintenance ); and
(iv)
any amount included in the total amount payable to cover
the expenses of delivering the goods or any of them to or to the order of the
hirer (in the agreement to be described as freight ); and
(v)
any amount included in the total amount payable to cover
vehicle registration fees (in the agreement to be called vehicle registration
fees ); and
(vi)
any amount included in the total amount payable for
insurance other than third party insurance (in this Act called and in the
agreement to be described as insurance ); and
[(vii), (viia)
deleted]
(viii)
the total of the amounts referred to in
subparagraphs (i), (iii), (iv), (v), (vi), (vii) and (viia) less the
deposit (in this Act called and in the agreement to be described as
amount financed ); and
(ix)
the total of any other charges included in the total
amount payable (in this Act called and in the agreement to be described
as terms charges ) and also the percentage rate of the terms charges
calculated in accordance with the formula provided in the Fifth Schedule; and
(x)
the total of the amounts referred to in
subparagraphs (viii) and (ix) (in this Act called the balance
originally payable under the agreement ); and
(xi)
the total amount payable;
and
(f)
shall contain, immediately above the space for the signature of the hirer, a
clause which shall be printed as prominently as or more prominently than the
terms and conditions of the agreement and which shall read as
follows —
The hirer is reminded
that terms charges may differ from one hire-purchase credit provider to
another and it will be in his best interests to make enquiries to satisfy
himself that he is receiving the best deal in terms charges.
(3) An owner who
enters into a hire-purchase agreement that does not comply with
subsection (2) commits an offence against this Act.
Penalty: $5 000.
(4) Without affecting
the liability of any person to be convicted of an offence against this
section, but subject to subsection (4a), where a provision of this
section is not complied with in relation to a hire-purchase agreement
(not being a failure to comply with subsection (2)(a)), the liability of
the hirer thereunder is, by force of this subsection, reduced by the amount
included in the hire-purchase agreement for terms charges and that amount may
be set off by the hirer against the amount that would otherwise be due or
become due to the owner under the agreement.
(4a) Where a hirer
alleges that the provisions of subsection (4) apply, but the owner
alleges that he acted honestly and that in all the circumstances the act or
omission constituting a failure to comply with a provision of this
section ought to be excused and that the provisions of
subsection (4) ought not to apply to or in relation to the hire-purchase
agreement, the owner, by an application in writing to the Commissioner, a copy
whereof is served on the hirer and every guarantor, may claim relief against
the consequences of that act or omission.
[(4b) deleted]
(4c) On an application
to the Commissioner under subsection (4a), the Commissioner, after
considering any submissions made by or on behalf of —
(a) the
owner; and
(b)
guarantors; and
(c) the
hirer,
may grant the relief
claimed upon such terms and conditions as will, in the opinion of the
Commissioner, do justice between the parties to the agreement and the parties
to any contract of guarantee relating to the agreement.
(4d) In granting
relief in respect of an application made under subsection (4a) the
Commissioner shall have regard to the extent to which the hirer was, or was
not, prejudiced by the act or omission relied on by the hirer as constituting
a failure to comply with a provision of this section.
(4e) A grant or
refusal of relief by the Commissioner in respect of an application made under
subsection (4a) shall be by instrument in writing signed by him and
served on the hirer, the owner, and every guarantor.
(4f) Subject to any
order of the State Administrative Tribunal on an application under
subsection (4g), a decision of the Commissioner in respect of an
application made under subsection (4a) has effect according to its terms
and, where relief is granted thereby, the operation of subsection (4),
the hire-purchase agreement and any contract of guarantee relating to it are
by virtue of this subsection varied to the extent necessary and as so
varied are binding on the parties thereto.
(4g) An owner, hirer,
or guarantor, who is a party to a hire-purchase agreement, or a contract of
guarantee relating to it, in respect of which a decision has been given by the
Commissioner in respect of an application made under subsection (4a) and
who is aggrieved thereby, may apply to the State Administrative Tribunal for a
review of the decision.
(5)
A hire-purchase agreement that is not in writing is not enforceable by
the owner.
(6) Where the goods
comprised in a hire-purchase agreement are all items of furniture, whether
free standing or in-built, as specified in the First Schedule Part 2 and
the total cash price of the goods is unknown because of some substantial
alteration or addition to be made to or of some substantial work to be done in
respect of all or any of the goods before delivery thereof to the hirer, it is
a sufficient compliance with the requirements of subsection (1) if the
statement therein referred to sets out approximate amounts in lieu of specific
amounts and it is a sufficient compliance with the requirements of
subsection (2)(c)(iii) and (e) in regard to amounts and cash price if the
agreement sets out approximate amounts and cash price in lieu of specific
amounts and cash price.
(6A) In each case
referred to in subsection (6) —
(a) the
amounts and price stated are clearly stated to be approximate only; and
(b)
prior to the stamping of the agreement the true amounts and price are inserted
therein and a further or amended statement in writing is duly completed in
accordance with the form in the First Schedule and is given to the hirer.
(7) For the purposes
of subsection (6) an amount or a cash price is approximate if it is
within 10% of the true amount or price or within $20 thereof.
[Section 3 amended by No. 113 of 1965
s. 8; No. 107 of 1973 s. 5; No. 37 of 1980 s. 4;
No. 88 of 1980 s. 3; No. 102 of 1984 s. 9; No. 1 of
1985 s. 21; No. 12 of 2004 s. 39; No. 55 of 2004
s. 510; No. 84 of 2004 s. 82; No. 19 of 2010 s. 19(2)-(4)
and 51; No. 42 of 2011 s. 52.]