Debt collection guideline: for collectors and creditors

Trespass

Entering private property to take possession of secured goods

The Personal Property Securities Act 2009 (Cth) (PPSA) deals with security interests in personal property (both consumer and commercial). Where the NCC also applies, the PPSA and the NCC operate concurrently.88

A credit provider subject to the NCC or its agent must not enter onto private residential property to take possession of secured goods unless:

  • the credit provider has a court order authorising the entry, or
  • the occupier of the premises has given their express written consent to the entry.89

The occupier may withdraw their consent at any time. Once the occupier withdraws their consent, the credit provider or their agent must leave the premises immediately. It is a criminal offence to enter premises in contravention of these sections.

Where applicable, the specific requirements in the NCCP and NCCP Regulations need to be observed. For instance, the NCCP and NCCP Regulations set out the following requirements in relation to the occupier’s consent:

  • the credit provider or its agent has requested entry from the occupier by writing or by calling at the premises
  • if the request is made personally, it may only be made between the hours of 8 am and 8 pm on any day other than a Sunday or public holiday
  • the written consent must be in accordance with Form 13 (for credit contracts) or Form 19 (for leases) of the NCCP Regulations and signed by the occupier, and
  • the consent is not presented to the occupier for signature with, or as part of, any other document.

Trespass to land

A credit provider or its agent must not enter private land (both residential and commercial) to take possession of secured goods unless the credit provider or its agent has:

  • a court order authorising entry, or
  • the express consent of the occupier.

Otherwise, the credit provider or its agent is trespassing on the occupier’s land.90 The mere existence of a debt, or a right to give notice in relation to a debt, does not create a right to enter premises for the purposes of taking secured goods where the requisite consent has not been given. A credit provider or its agent will have implied consent to enter the occupier’s land for the purpose of communicating with the occupier, including requesting consent to repossess secured goods. Such consent would not be available where the occupier has indicated whether by sign or otherwise that entry by visitors or particular visitors is unauthorised.

An occupier who gives their express consent may withdraw their consent at any time.91 Where the occupier has withdrawn their consent, the credit provider or its agent must leave the occupier’s land immediately.


88 See s. 119 of the PPSA.

89 See ss. 91(1), 91(2), s. 99 (for mortgaged goods) and s. 179N (for hired goods) of the NCC. Sections 99 and 179N require written consent of the debtor or lessee, having been informed in writing of the provisions of the relevant section. Under the PPSA, when seizing personal property to which a security interest applies, the credit provider may do so by any method permitted by law: s. 123.

90 For example, see Plenty v Dillon [1991] HCA 5 and TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82.

91 For example, see Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605.

 

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