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James D. Ford
James D. Ford, Solicitor
Category: Australia Law
Satisfied Customers: 1601
Experience:  Consulting Principal at Nexus Law Group
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In 2009 I had a home loan, during construction we needed more

Customer Question

In 2009 I had a home loan, during construction we needed more money for out of contract costs. I asked to increase our loan - the home loan lender advised it was difficult and messy to do so and a personal loan that would be rolled into the home loan at completion of the build period would be easier. I agreed, next thing the home loan lender advises me in writing that when the personal loan application officer calls me to "Do not advise them that you are building and need to cover the out of contract costs as they will deem this as not a valid purpose for personal loan”. The home loan lender also stated in writing that he would “ I will consolidate into Housing loan at the end when all is completed. I did as instructed and everything came through. Then a building dispute occurred, the home loan lender refused to roll the personal loan into the home loan, we ended up having to sell our dream home at a large loss. I ended up off work due ill health (and remain so) the personal loan debt ended up being sold/assigned by the bank to credit management group who chased me. I believe that the personal loan should never have been given as it was not valid (fraudulent) and indeed, if it had been rolled into the home loan like they said it would be but failed to do so, I would not be in this position now. Is the loan fraudulent non/valid and can I take legal action accordingly?
Submitted: 2 years ago.
Category: Australia Law
Expert:  James D. Ford replied 2 years ago.
Hi, can you please advise the exact date in 2009 when you entered the personal loan? (I ask because Australia wide responsible lending legislation commenced in 2009... and I want to determine if this legislation applies to your loan..)
I await your response, kind regards, James
Customer: replied 2 years ago.
23 Dec 2009 - I took the loan out with Westpac in Tasmania
Customer: replied 2 years ago.
Hi James, It was on 18 Dec 2009 I applied for the personal loan, it was provisionally approved 57 mins later and the loan paperwork was signed on 23 Dec 2009.
Expert:  James D. Ford replied 2 years ago.
Hi, thanks for the additional information....
I have determined that whilst the act was passed through parliament in 2009, it actually did not commence until July 1. 2010 (refer below)
What is the National Consumer Credit Protection Act?
The National Consumer Credit Protection Act 2009 (Comm.) was developed in response to business and consumer concerns as a national initiative to standardise credit practice in Australia.
As of July 1st 2010, the National Consumer Credit Protection Act came into force, replacing the State based Uniform National Consumer Credit Protection Act Act, thus standardising all the State National Consumer Credit Protection Acts under one Federal Banner, which is now administered by the Australian Securities Investment Commission (ASIC).
Therefore, your loan will be covered by the state legislation that was effective in Tasmania prior to the new national scheme.
Please allow me some time to identify the repealed legislation, and determine whether it offers you any basis to move forward with any potential claim.
I also note that any dispute over a bank loan - the normal process to follow is to go through the internal bank complaint process.. and if you are unable to resolve the matter.. you can take your dispute (at no charge) to an external dispute resolution service via the Ombudsman (Financial Ombudsman Service) of which Westpac is a member.,au
Kind regards,
Expert:  James D. Ford replied 2 years ago.
Hi, the legislation which was repealed was the Consumer Credit (Tasmania) Act 1996, which adopted the Queensland Consumer Credit Code for use in Tasmania.
The state based legislation sets out certain pre-contract disclosures that must be made, what must be included in the Contact, and that you must be provided with a copy of the Contract within 14 days of signing, etc.
Being Westpac, I can only assume that they complied fully with this legislation, and I can only revise this assumption by going over everything that was disclosed/provided prior to you signing the Contract, the actual Contract itself, and asking you whether you were provided with your own copy...
In order to do this, I would have to send you a quote for legal services...
For now... how much time was there between you being provided with information about the Contract (or the Contract itself) and you being asked to sign the Contract? were you provided with the opportunity to seek legal advice? etc.
Kind regards,