Reference no: EM133000638

Question - Sleepy approached ABC Ltd, a finance company, for an unsecured loan of $50,000 to buy a truck for private use, and also for her part-time logistics business on weekends. Amongst the terms was the following (Clause 10):

"ABC Ltd may by notice in writing to the Borrower, require the Borrower to immediately pay the outstanding balance of the amount financed if the Borrower defaults in the punctual payment of any amount payable under this loan contract."

Sleepy's repayments of the loan proceeded smoothly for some months until, unexpectedly, profits declined and her business went into liquidation. This came at a difficult time because Sleepy's son was diagnosed with cancer and their cash reserves were depleted as a result of his medical expenses.

Sleepy approached a representative of ABC Ltd. She pointed out that she would be unable to meet her repayments for the time being, and while she was not confident of immediate alternative employment, her son would be able to resume work when he recovered. ABC Ltd's representative showed little sympathy and stated that the company had already been generous in granting Sleepy a loan despite an adverse credit reference from Sleepy's bank. Sleepy was shocked by this bank disclosure and insisted that the bank's reference was wrong. Nonetheless, the representative insisted that ABC Ltd would enforce its rights if Sleepy should fail to meet her payments when due.

(a) Assume that the NCCP Act apply to Sleepy's loan. Has ABC Ltd engaged in "irresponsible lending"?

(b) Whether Clause 10 has breached any of the sections in the ASIC Act and ACL?

(c) Whether ABC Ltd has engaged in misleading and deceptive conduct?