This is the ASIC Corporations (Card Facility Transfer) Instrument 2024/486.

This instrument commences on the day after it is registered on the Federal Register of Legislation.

Note: The register may be accessed at www.legislation.gov.au.

3 Authority

This instrument is made under paragraph 994L(1)(a) of the Corporations Act 2001.

4 Definitions

In this instrument:

Act means the Corporations Act 2001.

AMEX Australia means American Express Australia Limited (ABN 92 108 952 085, Australian Credit Licence number 291313).

consumer has the meaning given in section 5 of the National Credit Act.

credit contract has the meaning given in section 5 of the National Credit Act.

credit provider has the meaning given in section 5 of the National Credit Act.

entering into, in relation to a credit contract, includes being assigned the rights of a credit provider under the credit contract.

Latitude Finance means Latitude Finance Australia (ABN 42 008 583 588, Australian Credit Licence Number 392145).

Latitude Terms and Conditions means the terms and conditions that apply to the applicable Latitude Finance credit card contracts.

National Credit Act means the National Consumer Credit Protection Act 2009.

New Card (Pre DDO) means a credit contract or credit contracts between a consumer and Latitude Finance where:

(a) the consumer was a party to an AMEX David Jones Card that was entered into before 5 October 2021;

(b) Latitude Finance has entered into a credit contract with the consumer in connection with an assignment of the AMEX David Jones Card; and

(c) Latitude Finance has entered into a new credit contract with the consumer that has the same credit limit as the AMEX David Jones Card, and is on similar terms to Latitude’s standard credit card terms and conditions,

and also includes all rights under the AMEX David Jones Card that have been assigned to Latitude Finance but excludes an AMEX David Jones Card which is known as a David Jones Storecard.

AMEX David Jones Card means a credit contract relating to a credit card issued by AMEX Australia and known as a David Jones American Express Platinum Card, a David Jones American Express Card or a David Jones Storecard.

Part 2—Exemption

5 Exemption from Part 7.8A in relation to New Cards (Pre DDO)

(1) Latitude Finance does not have to comply with Part 7.8A of the Act in relation to offering or entering into a New Card (Pre DDO).

Where exemption applies

(2) Subject to paragraph 6, the exemption in subparagraph 5(1) applies in relation to the offering of or entering into by Latitude Finance of a credit contract with a consumer where the credit contract is a New Card (Pre DDO).

(3) If, immediately before the day on which Latitude Finance sends offers to consumers in connection with a New Card (Pre DDO), a consumer:

(a) has been in default under an AMEX David Jones Card for 90 days or more; or

(b) has an agreement with AMEX Australia for changes to be made to the existing credit contract as a result of hardship notice or hardship application under section 72 of the National Credit Code,

the exemptions in subparagraph 5(1) only apply in relation to the entry into the New Card (Pre DDO) with the consumer if under the terms of the New Card (Pre DDO) the consumer will not be able to access or draw down credit to incur a liability under the contract until the consumer is able to meet their obligations under the contract.

6 Condition

If Latitude Finance relies on the exemption in subparagraph 5(1), Latitude Finance must:

(1) provide the following information to the consumer at the same time as any offer or invitation to apply is made to the consumer in relation to a New Card (Pre DDO):

(a) a statement that the consumer may accept the offer by ‘activating’ the card (which may include activating the physical card or adding the card electronically to a digital wallet or by the consumer approving the activation of an additional cardholder’s card with a one time pin (or similar code)); and

(b) a statement that the making of a payment under a direct debit or other third party recurring debit arrangement using the credit card issued under the AMEX David Jones Card will not constitute acceptance of the offer or result in entry into a credit contract with Latitude Finance; and

(c) a statement that recurring debit arrangements with retailers will stop working when the credit card issued under the AMEX David Jones Card is cancelled and information will be provided to the consumer about how to update or reestablish equivalent debit arrangements under the New Card (Pre DDO); and

(d) details of who the consumer should contact if the consumer suffers loss or damage after a New Card (Pre DDO) has been entered into with Latitude Finance; and

(e) a statement that:

(i) the New Card (Pre DDO) will operate under the terms and conditions (Latitude terms and conditions) that apply to the applicable Latitude Finance card contracts; and

(ii) the Latitude terms and conditions differ from the terms and conditions of the AMEX David Jones Card, including different fees and charges; and

(iii) a copy of the Latitude terms and conditions is included with the offer; and

(iv) the consumer should carefully review the Latitude terms and conditions before making a decision whether to accept the offer made by Latitude; and

(f) if, as the date of the offer the consumer had:

(i) been in default under the AMEX David Jones Card for 60 days or more; or

(ii) notified Latitude Finance or AMEX Australia of the consumer’s inability to meet the consumer’s obligations under the existing credit contract within the period of 60 days up to the date of the offer,

an explanation of the consumer’s rights under section 72 of the National Credit Code.

(2) provide the following information to the consumer prior to allowing any act that accepts any offer or takes up any invitation to apply for the New Card (Pre DDO):

(a) information about how to update or reestablish equivalent recurring debit arrangements with retailers; and

(b) a statement noting that the AMEX David Jones Card was subject to protections in the ePayments Code and that the New Card (Pre DDO) will not be as Latitude Finance is not a subscriber to the ePayments Code.