Commission Finalises Due Diligence Guidance For Consumer Credit Providers

The Commerce Commission has finalised its 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 lenders, including mobile traders selling on credit, will need to exercise due diligence to ensure their business complies with its duties and obligations under the Credit Contracts and Consumer Finance Act (CCCF Act).

The guidance explains which directors and senior managers are subject to the duty of due diligence and provides information to help them understand what it means for them.

“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 CCCF Act from the top down,” said Commission Chair Anna Rawlings.

“Failure to exercise the required levels of care, diligence and skill could expose you, personally, to significant financial consequences, including pecuniary penalties of up to $200,000.”

“We would like to thank all those who provided submissions in response to our draft guidelines, the feedback was both valuable and important to informing our final guidance,” said Ms Rawlings.

The finalised due diligence guidance can be found on the Commission’s website.

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 1 October 2021. It requires that all directors and senior managers of a creditor under a consumer credit contract and mobile traders entering into credit sales exercise due diligence to ensure that the business 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 role and responsibilities of the director or senior manager.

It includes taking reasonable steps to ensure that the creditor has procedures in place to ensure compliance, that it has methods in place to systematically identify deficiencies in the effectiveness of its compliance procedures and that it promptly remedies any deficiencies discovered.

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