Commission Seeks Feedback On Due Diligence Guidance

The Commerce Commission is seeking feedback on draft guidance for directors and senior managers of consumer credit providers and mobile traders on how to comply with the due diligence duty.

From 1 October 2021 directors and senior managers of consumer credit providers, including mobile traders selling on credit, will need to exercise due diligence to ensure the creditor complies with its duties and obligations under the Credit Contracts and Consumer Finance Act (CCCFA).

“These guidelines help to clarify how directors and senior managers should approach the task of performing their duties,” said Commission Chair Anna Rawlings.

“This is an important new obligation. The new due diligence duty obliges and incentivises individual corporate officers to drive a culture of compliance with the CCCFA from the top down. We are aware that lenders are eager to understand the law and aspects of our likely approach to enforcement. We look forward to considering the public’s feedback on this draft.”

For more information and to view the draft guidelines please visit our website.

Submissions can be made through the Commission’s submission portal. Submissions close on Friday 19 March 2021.

Background
The Government has introduced a range of changes to the CCCFA which come into effect in stages between December 2019 and October 2021. For more information about the changes and the timeline see the Ministry of Business, Innovation and Employment’s website and the Commission’s website.

The changes include new section 59B of the CCCFA which comes into force on 21 October 2021. It requires that all directors and senior managers of a creditor under a consumer credit contract exercise due diligence to ensure that the creditor complies with its duties and obligations under the Act. This means that they must exercise the care, diligence and skill that a reasonable director or senior manager (as the case may be) would exercise in the same circumstances, taking into account the nature of the business and the position of the director or senior manager and the nature of their responsibilities. It includes taking reasonable steps to ensure that the creditor has procedures in place to ensure compliance, has in place methods to systematically identify deficiencies in the effectiveness of compliance procedures and promptly remedies any deficiencies discovered.

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