9.7. A lender should not mislead borrowers about whether borrowers have a choice as to whether to enter
into a relevant insurance contract and from which providers. In particular:
a. unless the lender requires the borrower to obtain credit-related insurance (in compliance with section 69 of the Act), a lender should explain that credit-related insurance is optional; and
b. unless the lender requires the borrower to obtain credit-related insurance from a particular insurer or insurers (in compliance with section 69 of the Act) or an insurance policy is the only one that effectively relates to the credit agreement, a lender should not represent to the borrower that they cannot obtain insurance from other providers.
9.8. A lender can set certain criteria that the borrower’s preferred insurer must meet to be acceptable to
the lender, such as a minimum credit rating, However, the lender should ensure that those criteria do not have the effect of materially limiting the borrower’s choice of preferred insurer.
COMMUNICATING KEY FEATURES
9.9. A lender should apply the Guidance set out at 9.10–9.16 to all relevant insurance contracts, unless the relevant insurance contract is one that is financed by the lender but which is entered into independently by the borrower with an insurer that does not have a relationship with the lender, and without the lender’s facilitation.
9.10. To assist a borrower to make an informed decision as to whether to enter into a contract and
to be reasonably aware of the full implications of entering that contract, a lender should inform the borrower of the key features of the contract or require the insurer to do so. The lender (or insurer) should clearly highlight those features in a way that draws the borrower’s attention to that information. This information should be given at a time that assists the borrower to make an informed decision. Those key features should include:
a. the amount of the premium, or how the premium will be calculated;
b. where the premium is funded by the loan, the total amount of interest payable, or how the interest will be calculated;
c. the cover provided (including the risks insured against and the amount of the cover) and the excess(es) that apply;
d. that exclusions apply (if applicable), together with clear information about where to find the exclusions in the relevant insurance policy;
e. the duration of the cover, if the period of cover is limited; and
f. any cooling-off period provided under the terms of the policy during which the borrower can cancel the policy.
9.11. A lender should respond promptly to borrowers’ requests for further information about the key
features of the contract. Where a lender allows borrowers to arrange credit and the relevant
insurance contract online or remotely, the lender should ensure borrowers are provided with a simple, clear and timely way to seek further information from the lender.
9.12. A lender should highlight the key features identified at 9.10 to the borrower in a way that draws the information to the attention of the borrower, regardless of the channel through which insurance is arranged.
9.13. A lender should be satisfied that the level of assistance provided when informing the borrower of
the key features will be sufficient to assist the borrower to reach an informed decision and to be reasonably aware of the full implications of entering into the contract.
9.14. The level of explanation and assistance that are reasonable for a lender to provide (including through
an insurer) when informing the borrower of the key features of the contract may differ depending on the circumstances. Greater or further assistance should be provided when informing the borrower of the key features where there is a greater risk that the borrower may not be aware of the implications of entering into the contract. This includes where
a. the borrower is a vulnerable borrower; or
b. the borrower would be a new customer of the lender.
9.15. A lender may provide a lower level of assistance when informing the borrower of the key features
where there is a low risk that a borrower may not be aware of the implications of entering into the contract. This includes where:
a. the borrower is a person (other than a vulnerable borrower) who lenders can reasonably expect to have a good pre-existing understanding of insurance contracts of that type, which may be due to their previous experience with insurance contracts of that type; or
9.16. A lender should also follow the guidance at 7.13–7.17 in relation to:
a. allowing borrowers a sufficient opportunity to consider the terms of the relevant insurance contract; and
b. dealing with borrowers who do not appear to have a good understanding of English or who do not appear to have understood the explanations provided.
ADVERTISING
9.17. A lender should ensure that advertising or marketing material promoting credit-related insurance
that is developed and distributed by the lender is –
a. developed in conjunction with the insurer;
b. based on guidance from the insurer; or
c. checked by the insurer to ensure that the description of the insurance product is accurate.
9.18. If the lender uses advertising material developed and supplied to the lender by the insurer, the lender
should require that the advertising material complies with all legal obligations. The lender should also apply the general advertising Guidance at section 3, where relevant.
10 — Fees
16PRINCIPLE
Every lender must, at all times, comply with all the lender responsibilities specified in subsections 9C(3), (4) and (5) (see s 9C(2)(b) of the Act).
LENDER RESPONSIBILITY
A lender must, in relation to an agreement, meet all the lender’s legal obligations to the borrower, including under this Act… which include obligations in relation to… credit fees (see s 9C(3)(f) of the Act).
COMMENTARY
The lender responsibilities require lenders to meet all legal obligations to the borrower and section 9F(1)(b)(vii) of the Act provides that the Code may set out the processes, practices, or procedures that a lender should follow to ensure that fees are not unreasonable in terms of sections 41, 80 or 82. Section 44B of the Act states that evidence of compliance with the provisions of the Code relating to fees is to be treated as evidence that a credit fee or a default fee is not unreasonable. However, as with the rest of this Code, this section does not set out “safe harbours”. Compliance with the Code is not deemed to be compliance with the fees provisions of the Act (see section 44B of the Act). Evidence of compliance with the Code will be weighed against other evidence.
The processes and practices that a lender should follow to ensure that fees under consumer credit contracts are not unreasonable were the subject of the recent High Court judgment in Commerce Commission v Sportzone/MTF [2013] NZHC 2531. The case has been appealed to the Court of Appeal. As the final outcome of the Sportzone case is yet to be decided as at the time of publication, this Code does not address the matters at the centre of the Sportzone case. Once the application of the law has been settled, this section of the Code will be reviewed to consider what changes are necessary to reflect the outcome of that case. A lender should in the meantime refer to the case law interpreting the relevant provisions together with the Commerce Commission’s draft guidelines for credit fees.
Note that while some of the relevant provisions have been amended by the Credit Contracts and Consumer Finance Amendment Act 2014, the Sportzone case remains relevant as some of the legislative wording in relation to the costs which lenders can recover through fees remains unchanged.
Establishment fees are defined as fees or charges that relate to the costs incurred by the creditor in connection with the application for credit, processing and considering that application, documenting the contract, and advancing the credit; but does not include any fee or charge to the extent that it is a charge for an optional service. The relevant legislative provisions (see section 42 of the Act) provide that in determining whether an establishment fee is unreasonable, the Court must have regard to whether the amount of the fee is equal to or less than the creditor’s reasonable costs (or average reasonable costs for the class of consumer credit contract) in connection with the application for credit, processing and considering that application, documenting the contract, and advancing the credit.
Prepayment fees are defined as fees that relate only to prepayment in part or in full in respect of a fixed-rate contract and only for that part of the creditor’s loss that arises from the prepayment as a result of differences in interest rates. The legislation (see section 43 of the Act) provides that a prepayment fee is unreasonable if, and only if, it exceeds a reasonable estimate of the creditor’s loss arising from the part or full repayment. Section 54 of the Act provides that a fee payable for full prepayment must be calculated in accordance with the procedure provided in the regulations or through an appropriate procedure set out in the consumer credit contract. Lenders may also impose a credit fee relating to administrative costs associated with prepayment, which is subject to the credit fees provisions in section 44 of the Act.
Credit fees are defined as fees or charges payable by the debtor under a credit contract, or payable by the debtor to, or for the benefit of, the creditor in connection with a credit contract. In determining whether a credit fee (other than an establishment fee and a prepayment fee) is unreasonable, the legislation (see section 44 of the Act) provides that the Court must have regard to, in relation to the matter giving rise to the fee, whether the fee reasonably compensates the creditor for any cost incurred by the creditor. This includes the cost of providing a service to the borrower if the fee relates to the provision of a service. In determining whether the fee reasonably compensates the creditor for that cost or the provision of that service, the Court must have regard to reasonable standards of commercial practice.
Default fees are fees or charges payable on a breach of a credit contract by a debtor or on the enforcement of a credit contract by a creditor; but does not include default interest charges. For default fees, the legislation (see section 44A of the Act) provides that the Court must have regard to, in relation to the matter giving rise to the fee, whether the fee reasonably compensates the creditor for any cost incurred by the creditor and for a reasonable estimate of any loss incurred by the creditor as a result of the borrower’s acts or omissions. In determining whether the fee reasonably compensates the creditor for that cost or loss, the court must have regard to reasonable standards of commercial practice.
For buy-back transactions of land, the legislation (see section 80(1) of the Act) provides that a buy-back transaction must not provide for a buy-back fee or buy-back default fee that is unreasonable.
GUIDANCE