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What does the term ‘due and payable’ mean in the definition of repayment history information?

The term ‘due and payable’ in s 6V of the Privacy Act means that the credit provider has a legal entitlement to maintain an action for recovery against a consumer in respect of a missed monthly payment.

Definition of ‘repayment history information’

Repayment history information (RHI) is defined in section 6V(1) of the Privacy Act as:

‘If a credit provider provides consumer credit to an individual, the following information about the consumer credit is repayment history information about the individual:

  1. whether or not the individual has met an obligation to make a monthly payment that is due and payable in relation to the consumer credit;
  2. the day on which the monthly payment is due and payable;
  3. if the individual makes the monthly payment after the day on which the payment is due and payable—the day on which the individual makes that payment.’

While the term ‘due and payable’ is not defined in the Privacy Act, the OAIC understands the term ‘due and payable’ for the purposes of s 6V of the Act to mean that the credit provider has a legal entitlement to maintain an action for recovery against a consumer in respect of a missed monthly payment.

Meaning of ‘due and payable’ for different arrangements

A range of different payment arrangements may be made between a credit provider and an individual where the individual is unable to meet the terms of a consumer credit contract:

  1. Where the arrangement is a variation to the terms of the consumer credit contract, then an assessment of whether RHI is ‘due and payable’ under s 6V(1) should be by reference to the terms of the varied contract.

  2. Where there is no variation to the consumer credit contract and an indulgence is made, whether RHI should be assessed by reference to the terms of the indulgence or by reference to the underlying credit contract will depend on the nature of that arrangement, particularly, whether the credit provider could maintain enforcement action against the individual for default of the original contract despite compliance with the indulgence.

An assessment of whether RHI is ‘due and payable’ by reference to the original consumer credit contract or the indulgence should be determined on a case-by-case basis, with reference to the principles outlined above.

Examples

Two examples may assist in clarifying how the term ‘due and payable’ may apply:

  • If the circumstances of the indulgence are such that the credit provider would likely be estopped from enforcing the original consumer credit contract on the basis of a failure to pay in accordance with the original contract, then any missed payment under the original contract would not be ‘payable’ for the purposes of s 6V(1). For an equitable estoppel to arise, the CP must have represented to the consumer (or otherwise induced the consumer to adopt the assumption) that it would not enforce its rights under the original contract for failure to make the monthly payment(s) when due. In such circumstances, an assessment of whether RHI is ‘due and payable’ under s 6V(1) should be made by reference to the terms of the indulgence.

  • If the indulgence involves no representation or assumed state of affairs that the credit provider would postpone enforcement under the original consumer credit contract (that is, where there is no giving rise to an estoppel) then any missed payment is ‘due and payable’ under the original contract, despite the indulgence.

If the OAIC were to investigate a potential breach of the obligations under Part IIIA and the Privacy (Credit Reporting) Code (Version 1.2) (CR Code) in relation to disclosures of RHI, it would be expected that a credit provider be able to demonstrate that it had taken reasonable steps to implement practices, procedures and systems that:

  • ensure compliance with RHI disclosure requirements (including under the Privacy Act and the CR Code), and
  • enable enquiries and complaints from individuals about the credit provider’s compliance (s 21B of the Privacy Act).

For further information about repayment history information, see Privacy fact sheet 34: Repayment history information and your credit report.

For information about hardship assistance and your credit report, see Privacy fact sheet 38: Hardship assistance and your credit report.

Further information about hardship variations is available on the Australian Securities & Investments Commission’s MoneySmart website.