Credit, Consumers and the Law

Karen Fairweather is an Associate Lecturer at the TC Beirne School of Law, the University of Queensland. Prior to this she was a lecturer at Durham University in the UK. She has taught contract law, trusts, legal history and civil remedies. She has a particular interest in the history of consumer credit law and has published widely on historical aspects of consumer credit as well as on contemporary developments in the field. Paul O’Shea was a Senior Lecturer at the TC Beirne School of Law at the University of Queensland and is now principal solicitor and director of O’Shea Lawyers. He is one of Australia’s leading researchers in consumer law, particularly consumer credit law. He has taught consumer and commercial law at universities in Australia and throughout Asia and has published extensively in this field. His research has been cited in superior court decisions and by the Australian Commonwealth Treasury in support of legislation regulating consumer credit. Ross Grantham is a Professor of Commercial Law at the TC Beirne School of Law, the University of Queensland and the Director of the Australian Centre for Private Law. He is the author of a number of monographs, casebooks, and numerous scholarly journal articles, and has co-edited four collections of essays. He is a member of the editorial boards of The Company Lawyer and the Journal of Corporate Law Studies and is the Australian editor of the Journal of Business Law. He was Dean of Law and Head of School at the TC Beirne School of Law between 2007 and 2012, having been Deputy Head of School 2005–2006, and Director of Research 2004–2005.

Contents

Acknowledgements

Contributors

Table of Cases

Table of Legislation

Part 1- Issues and Themes

1. Consumer Law: Paternalism, Fragmentation, and Centralised Enforcement
Dr Paul O’Shea, Karen Fairweather and Professor Ross Grantham

Part 2- Functional Perspectives

2. It’s for your Own Good: Legal Paternalism and New Zealand Consumer Credit Laws
Kate Tokeley

3. Credit – Suitable for One or Safe for Everyone?
Professor Gail Pearson

4. Responsible Lending: Consumer Protection and Prudential Regulation Perspectives

Dr Onyeka Osuji

5. Can Consumer Law Solve the Problem of Complexity in US Consumer Credit Products?
Professor Kathleen Engel

Part 3 - Responsible Lending and Financial Exclusion

6. Making Payday Loans Safer: the Australian Approach to Regulating Small and Medium Sized Loans
Nicola Howell

7. High Cost Credit in the United Kingdom: A Philosophical Justification for Government Intervention

Jodi Gardner

8. Apples and Oranges? Responsible Mortgage Lending in the UK and Australia

Karen Fairweather

9. Sorting the Sheep from the Wolves in Sheep’s Clothing: Defining Community Development Finance Institutions as Distinct from Fringe Lenders in Efforts to Address Financial Exclusion
Dr Therese Wilson

Part 4 - Unfair Contract Terms

10. Unfair Contract Terms Legislation: Is it Good Consumer Law?
Dr Paul O’Shea

11. The Fragility of Unfair Terms Law on Bank Charges: Towards a Complex Re-Litigation in the UK?

Professor Mel Kenny and Professor James Devenney

12. The Regulation of Unfair Terms in Non-Professional Suretyship Agreements: Lessons for the Wider European Union Harmonization Agenda

Professor James Devenney and Professor Mel Kenny

Index