Banks may face legal action on business loans
Updated: 7:06 pm, Thursday, 9 March 2017
ASIC has warned it may take legal action if lenders don't stop using small business loan contracts that fail new laws banning unfair terms and conditions.
A joint review by ASIC and the small business ombudsman has found small business loan contracts by major lenders still include terms that don't comply with new laws introduced last November.
The regulator and the Australian Small Business and Family Enterprise Ombudsman (ASBFEO) looked at loan contracts from eight lenders including the big four banks and found a failure to comply with new unfair contract terms (UCT) legislation.
There’s an awful lot of, 'agree in principle but',' ombudsman Kate Carnell told Sky News.
'I'd hope that the big banks were serious about the comments they continue to make... that they really are interested in changing their attitudes to small business customers generally.'
This was despite lenders being given a year to change ahead of last year's November implementation deadline.
'I'm firmly of the belief that the loan contract terms as they currently stand, fail to comply with the UCT law,' Ms Carnell said.
'Once again, repeated calls for the banks to amend their practices are falling on deaf ears, despite inquiry after inquiry highlighting major flaws in the way they treat their small business customers.
'The federal government introduced new laws to protect small businesses, preventing large companies from putting unilateral unilateral terms in their standard contracts.
ASIC deputy chair Peter Kell said the regulator had been raising cases of unfair terms with lenders seeking to have the offending conditions removed or changed.'
If the lender refuses to do so we will consider all regulatory options, including taking the matter to court as ultimately a court can decide whether or not a term is unfair,' he said.
The review found lenders continue to include terms giving lenders 'very broad discretion' to unilaterally change terms and conditions of contracts.It also found lenders could include terms that allow a loan default to be declared in a broad range of circumstances, rather than where the borrower has - materially defaulted on obligations.
Small business contracts were also found with terms absolving lenders from responsibility for conduct, statements or representations made to borrowers outside of the contract, as well as terms that gave too-broad an indemnity to the lender against losses, costs, liabilities and expenses.