Section 129 of the National Credit Act requires the creditor to specify the default including the actual amount of the arrears. The requirement for ‘drawing the default to the attention of the consumer’ means more than just the fact that the consumer is ‘in default’.
Section 130(4) gives the debtor an opportunity to remedy the default. The consumer must therefore be informed of the extent of the arears so as to decide how to move forward regarding the management of their debt. It is thus a necessary requirement to specify the amount and nature of the default in the s129 NCA notice.
The debt in this matter related to the purchase on an instalment sale agreement of subsidised housing. It was also held that the purchase price was not yet due because the seller had never recorded the instalment sale agreement in the Deeds Office as required by the Alienation of Land Act.
A debt becomes due when it is immediately claimable or recoverable. Where there is a statutory requirement that the agreement must be recorded, the correct position is that the instalments only become due and payable on the recordal of the agreement. In the circumstances there were no arrears and the s129 notices were not valid and did not provide a gateway for the credit provider to institute legal action against the consumer.
This is a November 2018 decision: Amardien and others v Registrar of Deeds and others.
