Mortgage Industry Association of Australia
MORTGAGE INDUSTRY OMBUDSMAN
SCHEME
RULES
CONTENTS
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STATUS OF INFORMATION SUPPLIED AND STATEMENTS MADE TO THE OMBUDSMAN |
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MORTGAGE INDUSTRY ASSOCIATION OF AUSTRALIA
MORTGAGE INDUSTRY OMBUDSMAN
SCHEME
RULES
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| 1. | The Mortgage Industry
Ombudsman Scheme ("MIOS") has been established by the Mortgage
Industry Association of Australia ("MIAA") pursuant to the MIAA
Code of Practice as an independent industry supervisory scheme providing to
Customers an alternative to other legal proceedings to resolve disputes free of
charge to Customers. The MIOS facilitates dispute resolution:
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| (a) | between Members and Customers; and | |
| (b) | between Members. |
| 2. | The aim of the MIOS is to
provide an independent and prompt resolution of disputes against the criteria of
law, best industry practice as specified in the Code of Practice, and fairness
in all the circumstances.
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| 3. | Customers who elect to refer
their dispute to the Ombudsman are not bound by the Ombudsman's decision and
retain any legal rights they have to refer the matter to a court or tribunal.
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| 4. | The
Ombudsman's decision is binding on a Member only if a Customer accepts the
decision in accordance with these Rules.
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| 5. | The MIOS is supervised by
the Mortgage Industry Review Committee ("MIRC") which
comprises an equal number of MIAA Members and Consumer representatives with an
independent Chairman.
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| 6. | These Rules are to be read as one with the MIAA Code of Practice. |
| DEFINITIONS AND INTERPRETATION | |
| 7.1 | Unless the context
otherwise requires:
"Applicant" - a Customer or Member making a complaint or notifying a Dispute to the Ombudsman; "Award" - refer to clause 9.8; "Code of Practice" or "Code" - the Code of Practice as promulgated by the MIAA and as revised and re-promulgated by the MIAA from time to time; "Customer" - any member of the public who deals with a MIAA Member whether as a borrower, guarantor, prospective borrower, or prospective guarantor, or who in any way seeks the services of a Member in the ordinary course of that Member's business in the Mortgage Industry; "Deadlock" occurs when: |
| (a) | a Customer has made a complaint in writing; and
(ii) the Member concerned has had a reasonable opportunity to consider and respond to the complaint; and (iii) the Customer has not accepted any observations made or conditions of settlement or satisfaction offered by the Member to the Customer and the matter remains unresolved; or |
| (b) | a Customer's complaint is not resolved to the satisfaction
of the Customer within three months after the Customer's written complaint has
been sent to the Member concerned by the MIAA Secretariat.
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| "Dispute" - a complaint in writing against a Member which has been delivered to the Member but which has not been resolved to an Applicant's satisfaction; | |
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"Member" - any person, firm or corporation which is a member of the MIAA to which the MIAA's Code of Practice applies, or any other person, firm or corporation that the National Council of the MIAA agrees may access the MIOS; "MIAA" - the Mortgage Industry Association of Australia; "Mortgage Industry Review Committee" or "MIRC" - the body established by that name under the Code of Practice; "Mortgage Services" - any services provided to Customers by a Member in the ordinary course of its business in the Mortgage Industry; "National Council" - the National Council of the MIAA; "National Secretariat" - the National Secretariat of the MIAA; "Ombudsman" - refer to paragraph 9.1; "Party" - an Applicant or a Respondent; "Relevant Government Authority" - Australian Securities and Investments Commission and/or such other instrumentality or agency of a State or Federal Government having legal authority to require MIRC to do any act or thing for the purposes of these Rules; "Respondent" - a Member whose act or omission is the subject of a dispute referred to the MIOS but who is not the Applicant. "Rules" - these Rules as amended and re-promulgated from time to time; "Scheme Manager" - the person appointed by MIRC to manage the day-to-day operations of MIOS; "State" - includes Territory of the Commonwealth of Australia; "State Council" - the MIAA Chapter Council for the State in which the Customer resides; "State Secretariat" - the MIAA Secretariat for the State in which the Applicant resides. "Third Party Member" - a Member who has been joined in Dispute by the Ombudsman pursuant to the Rules.
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| 7.2 | Unless the context
otherwise requires:
words importing the singular number include the plural number and vice versa; any reference to any of the parties by their defined terms include that party's executors, administrators or permitted assigns, or being a company, its successors or permitted assigns; reference to one gender include every gender; clause headings are for reference purposes only. |
| DEALING WITH CUSTOMER COMPLAINTS | |
| 8.1 | Every Member to whom the MIAA
Code of Practice applies is bound to comply with the Code of Practice subject to
the conditions and qualifications set out in that Code. Where a Customer
believes that a Member has failed to comply with the MIAA Code of Practice, that
Customer may make a complaint about the matter in accordance with these Rules.
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| 8.2 | The MIAA is committed to
ensuring that a Customer can make a complaint to a Member about that Member's
dealings with the Customer in an informal manner and without fear of
recrimination. Accordingly, every Member will appoint a Complaints Contact
Person who will have the authority to determine and respond to any complaint
made by a Customer.
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| 8.3 | Where a Customer remains
dissatisfied with a Member's response to an informal complaint, the Customer may
make a formal complaint about the matter by writing to the Scheme Manager.
When writing to the Scheme Manager the Customer will need:
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| (i) | to set out sufficient details of the complaint so as to be able to identify the particular breach of the Code of Practice by the Member; and | |
| (ii) | to indicate what relief or corrective action the Customer wants taken by the Member to resolve the matter; and | |
| (iii) | to provide a copy of all relevant documents; and | |
| (iv) | also to give consent to the Scheme Manager sending a copy of the complaint and accompanying documents to the Member concerned and to the State Council. |
| 8.4 | When a Customer's written complaint and
consent is received, the Scheme Manager will assess whether the complaint
should be handled by another organisation. If so, the Scheme
Manager will so notify the Customer and provide contact details for that
other organisation. With the permission of the Customer and the
Member concerned, the complaint will be forwarded by the Scheme Manager to
that other organisation.
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| 8.5 | Except where a Customer's
complaint is to be attended to by another organisation, and provided the
Customer's written consent has been receive, the Scheme Manager will promptly
send a copy of the complaint and relevant documents to the Member concerned and
to the State Council. The Member concerned must respond to the Scheme
Manager if possible within 15 business days (but in any event promptly).
The Scheme Manager will as soon as practicable send a copy of the Member's
response to the Customer and the State Council. The State Council may act
as it sees fit to assist the parties to resolve the Customer's complaint.
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| 8.6 | If a Customer, having afforded the State Council a reasonable opportunity to assist the parties to resolve the dispute themselves, remains dissatisfied with the Member's response, the Customer may still pursue other avenues for redress. |
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| 9.1 | In accordance with the MIAA
Code or Practice and these Rules, the MIRC appoints a person from a panel
of experienced commercial people who are independent of the MIAA, for the
purpose of dispute resolution in accordance with these Rules. This person
is known as the "Mortgage Industry Ombudsman".
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| 9.2 | To be eligible to be appointed to this panel a person must be: |
| 9.2.1 | independent of the MIAA, the Applicant and the Respondent; | |
| 9.2.2 | have broad experience in legal adjudication or in facilitating, negotiating or mediating the resolution of disputes or a barrister or solicitor of not less than five years standing; | |
| 9.2.3 | able to become well informed about and to make objective and independent decisions on, the subject matter of a Dispute; | |
| 9.2.4 | able to exercise sound and fair judgment; | |
| 9.2.5 | able to command the respect of the parties.
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| 9.3 | The Ombudsman has power to
act on a written notification to the Scheme Manager that a complaint against a
Member in relation to the provision of Mortgage Services within Australia by
that Member remains unresolved and that therefore a "Dispute"
exists. The Ombudsman may act even if some form of specific redress, for
example compensation, is not called for by the Customer. A complaint may
be made by a Customer who simply requires some form of disciplinary action to be
taken against the Member in respect of whom the complaint is made.
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| 9.4 | The Ombudsman's powers and
duties are:
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| (a) | to consider Disputes: |
| (i) | between a Customer and a Member relating to the provision of Mortgage Services within Australia by the Member to the Customer; | |
| (ii) | between Members relating to the provision of Mortgage Services within Australia by a Party to a Customer of either Party; |
| (b) | to facilitate the satisfaction, settlement or withdrawal of Disputes whether by agreement, by making recommendations or awards or by any other appropriate means; |
| against the
criteria of law, best industry practice as specified in the Code of Practice,
and fairness in all the circumstances.
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| 9.5 | The Ombudsman does not have
power to consider any Dispute where that Dispute involves a claim for
compensation in excess of $100,000. This limit applies on a per claim
basis but where a claim relates to several products or services, these are
aggregated and dealt with as one claim.
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| 9.6 | When notification of a
Dispute is received, the Scheme Manager will promptly send to the Applicant a
copy of these Rules. At the same time, the Scheme Manager will notify the
Ombudsman will, as soon as practicable after receiving notice of the Dispute,
commence the dispute resolution procedures specified in these Rules.
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| 9.7 | The Ombudsman and the
Scheme Manager may give advice to an Applicant on the procedure for referring a
Dispute for consideration by the Ombudsman. It is not a function of the
Ombudsman to provide general information about Members or their services.
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| 9.8 | Where the Ombudsman finds that Member has breached the Code of Practice, the Ombudsman may make such Award as he or she thinks fit., including an award for compensation up to a maximum of $100,000 for direct loss suffered by the Customer by reason of the acts or omission of the Member concerned. In addition or as an alternative to making a monetary award, the Ombudsman may make an order directing the Member to do or to refrain from doing an act in relation to the subject matter of the Dispute. In every case the Ombudsman may make such ancillary orders as he or she thinks fit to give full effect to the primary orders made. |
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| 10.1 | The Ombudsman's
Determination is binding on a Member only if the Applicant agrees in writing to
accept the Determination. It is always open to the Applicant to reject the
Ombudsman's Determination and to proceed with any other remedy which the
Applicant may have available.
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| 10.2 | Where the Ombudsman makes a Determination that involves the payment by the Member of any form of valuable consideration (whether money or otherwise) by way of compensation, then the Ombudsman's Determination will be open for acceptance by the Applicant if and only if the Applicant in writing accepts the Determination in full and final settlement of the subject matter of the complaint. Once the Ombudsman's Determination is accepted by the Applicant in full and final settlement of the subject matter of the complaint, the Determination is binding on both the Applicant and the Respondent concerned. |
| PAYMENT OF COSTS | |
| 11.1 | The
Mortgage Industry Ombudsman and the Scheme Manager are independent of the MIAA
and its Members. The Ombudsman is paid out of the Association's funds on a
sessional fee basis. The Ombudsman's fees and all other costs incurred by
the Ombudsman or by the Scheme Manager ("the Ombudsman's Costs") in
relation to a complaint (and a Dispute if the complaint so becomes) are payable
to the MIAA by the Member who is the subject of the complaint, provided always
that the Customer has first notified his complaint to the Member concerned who
has not responded to the satisfaction of the Customer or at all to the Customer.
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| 11.2 |
Where a Member has been joined as a party to a Dispute under Rule 21
("Third Party"), subject to Rule 11.3, the Third Party will be liable
for payment of the Ombudsman's Costs where the Ombudsman determines that the
Third Party has committed a substantial breach of the Code of Practice.
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| 11.3 | Where the Ombudsman
determines that both the respondent and the Third Party have breached the Code
of Practice, the Ombudsman's Costs are payable by the respondent and the Third
Party in such proportions or as to such amounts as the Ombudsman determines.
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| 11.4 | In every case, the Customer will pay only his or her own expenses and will not be called upon to contribute to the Ombudsman's costs. |
| THE MORTGAGE INDUSTRY REVIEW COMMITTEE | |
| 12.1 |
For the purposes of the Code of Practice and the Mortgage Industry Ombudsman
Scheme, there is a Mortgage Industry Review Committee comprised of an
equal number of Members and Consumer representatives together with an
independent Chairman. Consumer representatives are appointed by the
Federal Minister responsible for consumer affairs matters.
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| 12.2 |
The functions of the Mortgage Industry Review Committee are to:
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(a) |
appoint the Ombudsman for each State and Territory and appoint, supervise and dismiss the Scheme Manager;
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(b) |
agree the budget for the Mortgage Industry Ombudsman Scheme with National Council;
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(c) |
promote consultation about and recommend to National Council proposals for substantive changes to these Rules of the Mortgage Industry Ombudsman Scheme;
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(d) |
receive and consider complaints about the operation of the Mortgage Industry Ombudsman Scheme;
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(e) |
monitor general trends and issues arising from complaints made and Disputes notified to the Mortgage Industry Review Committee, including those that fall outside these Rules;
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(f) |
monitor and, where appropriate, report systemic issues arising from complaints made or Disputes notified to the Mortgage Industry Review Committee;
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(g) |
where appropriate and where required by law, report systemic issues involving a particular Member or particular Members, and serious misconduct by a Member in relation to Mortgage Services to a Relevant Authority;
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(h) |
monitor the Mortgage Industry Ombudsman Scheme's ability to manage its own caseload and to perform other promoted functions;
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(i) |
oversee and monitor practices and procedures of the Mortgage Industry Ombudsman Scheme; and
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(j) |
ensure independence of the dispute resolution process.
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| 12.3 | Members of the MIRC are appointed for a term of three years and are eligible for re-appointed.
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| 12.4 | Eligibility criteria for appointment to
the MIRC are as follows:
Independent Chairman
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12.4.1
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at least five years senior executive experience in banking, finance or business or legal practitioner with not less then five years experience specifically in the area of banking or finance; |
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Consumer Representative |
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12.4.2 |
capability based upon qualifications or experience to represent consumer interests on the MIRC; MIAA Member
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12.4.3 |
a full Member, or duly authorised representative of a full Member corporation or firm, approved by National Council;
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Chairman and Consumer Representatives
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12.4.4 |
not a current or past Member or director or employee of a Member of the MIAA, or of any other industry body representing authorised deposit taking institutions, or other financial institutions, or credit providers, or concerned with banking or finance matters;
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For all MIRC Members
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12.4.5 |
not currently or previously an undischarged bankrupt or a partner of a person who is or has at any time been bankrupt or who has otherwise taken the benefit of the laws relating to insolvency;
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12.4.6 |
not currently or previously a director or officer of a corporation which is or has at any time been in liquidation or under any form of external administration for the purposes of the Corporations Law or other corresponding law;
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12.4.7 |
not being a person who is or has at any time been subject to any form of external legal administration.
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12.4.8 |
not being a person who has had an occupational licence cancelled or suspended for any reason whatsoever;
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12.4.9 |
being a person whose standing and authority in the community generally is such as to give his or her term of office.
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| 12.5 | A Member of the MIRC must satisfy the
eligibility criteria for appointment and at all times during his or her term of
office.
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| 12.6 | An alternative may be appointed for each
of the MIAA Representative and the Consumer Representative. This alternate
representative must satisfy the eligibility criteria set out above at the time
of appointment and at all times during the term of office of the alternate's
principal.
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| 12.7 | To assist the dispute resolution process, the administrative functions of MIRC are carried out by the Scheme Manager appointed by the MIRC. The functions of the Scheme Manager are to: |
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(a) |
receive and deal with Customers' complaints and Disputes according to the Code and these Rules; | |
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(b) |
where necessary to ensure the efficient and effective resolution of Customers' complaints and Disputes, assist Customers to comply with clause 8.2(i); | |
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(c) |
maintain appropriate records relating to complaints received and their outcomes in order to provide to the MIRC essential data to determine whether or not there are systemic problems in the Mortgage Industry which require addressing. |
| REPORTING | |
| 13.1 | In carrying out its monitoring role
established under these Rules, MIRC must collect and record information in a
manner which enable the identification of trends and patterns in complaints and
Disputes ("Systemic Issues"). Subject to the direction of MIRC,
the Scheme Manager is responsible for the day-to-day monitoring and reporting of
Systemic Issues arising in connection with complaints and Disputes.
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| 13.2 | Provided that in so doing MIRC or the
Scheme Manager is not exposed to legal action as a result of complying with a
legally enforceable requirement of a relevant Government Authority, MIRC or the
Scheme Manager may report cases of serious misconduct by a Member or Systemic
Issues in relation to complaints and Disputes to ASIC or other relevant
Government Authority. For the purposes of this reporting obligation
"serious misconduct" means conduct involving fraud or gross
negligence, or failure to comply with an Ombudsman's Award.
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| 13.3 | However, before MIRC reports an
allegation of serious misconduct, it must first notify the Member of the
allegation and provide to the Member an opportunity (being not less than 30
days) to advise MIRC why it should not report the matter to the Relevant
Government Authority. In considering whether or not to report an
allegation of serious misconduct notwithstanding the representations of a
Member, MIRC must afford the Member all necessary procedural fairness.
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| 13.4 | Nothing in this Code of Practice requires
MIRC or the Scheme Manager to conduct any independent investigation or enquiry
into the subject matter of any complaint or Dispute. In every case, and
recognising that it is unfair and undesirable to report on matters which have
not been through an independent dispute resolution process conducted by the
Ombudsman, MIRC and the Scheme Manager will monitor and report on those matters
where an Award has been made by the Ombudsman or where a Customer's complaint
has not been responded to within the time limited by this Code for
response. Complaints made by a Customer which are not admitted by the
Member concerned shall not be reported until the completion of the dispute
resolution procedures established by this Code except for the purposes of
statistical reporting in MIRC's Annual Report. Subject to these
constraints, MIRC will collect and record such information as Relevant
Government Authority may by legally enforceable requirement stipulate from time
to time.
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| ANNUAL REPORT | |
| 14. | Subject to relevant legal constraints
including constraints as to privacy, MIRC will publish an Annual Report on the
operations of the Code of Practice and these Rules within five months after the
end of each full calendar year. The Annual Report will provide details of:
(i) the number of complaints received; (ii) by category of Member; (iii) by type of activity; (iv) by regional distribution; and will be made available to ASIC, Relevant Government Authorities and the Federal Minister responsible for Consumer Affairs matters, and to other interested parties upon request. |
| INDEPENDENT REVIEW | |
| 15.1 | As the Mortgage Industry is dynamic, MIRC
will, every three years, commission an independent review of the operations of
MIOS. This review will address:
(i) whether MIOS meets relevant Government dispute resolution benchmarks; (ii) the satisfaction levels of Customers and Member with the operations of MIOS; (iii) the effectiveness, fairness and independence of MIOS; (iv) public awareness of access to MIOS.
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| 15.2 | The independent review will be made available to Relevant Government Authorities, the Federal Minister responsible for Consumer Affairs matters, Members and consumer representative Groups nominated by the Federal Minister responsible for Consumer Affairs matters. |
| FUNDING OF MIOS | |
| 16. | The MIAA will fund MIOS to enable it to operative effectively. |
| PUBLICITY FOR MIOS | |
| 17. | The MIAA will ensure that MIOS is publicised in the manner stipulated in the MIAA Code of Practice. |
| AMENDMENT TO THESE RULES | |
| 18. | These Rules are made by the MIAA but may only be amended after consultation with Relevant Authorities, MIRC and the Federal Minister responsible for Consumer Affairs matters. Any amendment to these Rules will only operate in respect of complaints made or Disputes notified after the date of promulgation of the amendment |
| DELEGATION | |
| 19.1 | The Ombudsman may appoint another person
who is not a Member to perform, and may delegate to that person, all or any of
his or her powers and duties except the power to make a recommendation or award
and this power of delegation.
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| 19.2 | During any period in which the Ombudsman is absent as a result of taking leave or through illness or in a circumstance in which a conflict of interest may arise, the MIRC may appoint a Deputy Ombudsman to act in place of the Ombudsman in relation to a Dispute. |
| PROCEDURE | |
| 20.1 | Subject to the other provisions of these
Rules, the Ombudsman may, in his or her own discretion, decide the procedure to
be adopted in considering Disputes. The Ombudsman will inform himself or
herself in any way thought fit.
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| 20.2 | Without limiting the Ombudsman's
discretion in any way:
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(a) |
if the Ombudsman is of the view that no formal hearing should be convened, he or she will (through the Scheme Manager) notify the Customer of this fact and the reasons for it. The Mortgage Industry Ombudsman will then proceed to consider the Customer's complaint on the basis of the documents provided by the parties; | |
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(b) |
if the Ombudsman is of the view that the complaint should proceed to a formal hearing, the Customer and the Member concerned will be notified of a time, date and place for the conduct of the hearing. As may be appropriate, the Ombudsman (through the Scheme Manager) will give directions as to the way in which the hearing will be conducted; | |
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(c) |
the Ombudsman may give such directions as he or she thinks
fit as to legal representation or representation by other persons approved by
the Ombudsman in special circumstances.
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| 20.3 | The Ombudsman may also decide whether a
Dispute falls within these Rules or should be referred to the dispute resolution
body or procedures ("DRP") of another industry or profession to which
the Respondent belongs. In reaching this decision the Ombudsman may
consider representations from the Applicant and Respondent. If the
Ombudsman decides that a Dispute does not fall within these Rules or should be
referred for resolution by another DRP, he or she must notify the Applicant and
the Respondent in writing, stating reasons for this decision.
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| 20.4 | The Ombudsman may decide not to hear any
Dispute or may withdraw from hearing any Dispute at any time. The
Ombudsman must, within a reasonable time, give written reasons for his or her
decision not to hear a Dispute or to withdraw from hearing a Dispute.
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| 20.5 | Each party to a Dispute must disclose to
the other party and to the Ombudsman all documentation and information relevant
to the subject matter of the complaint. Where necessary, the parties must
seek to obtain the consent of a third party to disclosure of documentation and
information in the possession of that third party.
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| 20.6 | The Ombudsman may require a party to a
Dispute to provide any information in its possession that relates to the
Dispute. That party must, as soon as is reasonably practicable, disclose
it to the Ombudsman.
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| 20.7 | Where a party to a Dispute certifies to
the Ombudsman that the disclosure of information would place that party in
breach of its duty of confidentiality to a third party, the disputing party must
use its best endeavours to obtain the consent of the third party to the
disclosure of such information. Where this consent is not provided within
a reasonable time of the request being made, the disputing party is not required
to comply with clause 20.6.
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| 20.8 |
If any party to a Dispute supplies information to the Ombudsman and requests that it be treated as confidential, the Ombudsman must not disclose that information to any other party to the Dispute or any other person. The Ombudsman is not entitled to use that information to reach a decision adverse to the party against whom the confidential information relates, except in circumstances of clause 20.10.
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| 20.9 | Where any party to a dispute requests
access to any information on the Ombudsman's file, the Ombudsman, subject to
clause 20.8, must make this information available.
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| 20.10 | The Ombudsman may take account of a
Member's security measures of which he has knowledge although no disclosure of
those measures has been or will be made to the Applicant.
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| 20.11 | In determining whether a Member has
contravened the Code of Practice, all statements, acts or admissions of the
Member's employees or representatives will be considered to be statements, acts
or admissions of the Member.
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| 20.12 | The Ombudsman is not bound by any legal
rule of evidence.
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| 20.13 | Where the Ombudsman has facilitated the satisfaction, settlement or withdrawal of a Dispute, any information supplied by a party to the Ombudsman shall be returned to that party as soon as reasonably practicable thereafter. |
| JOINDER OF OTHER PARTIES | |
| 21.1 | Subject to clause 21.1, a Member who is a
Respondent may serve a Notice of Request on the Ombudsman requesting the
Ombudsman to join another Member (excluding the Applicant where the Applicant is
a Member) as a party to the Dispute.
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| 21.2 | If the Ombudsman is of the opinion that
so to do would:
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(a) |
not unfairly prejudice the Applicant; and | |
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(b) |
would lead to more efficient and effective resolution of
the Dispute, the Ombudsman may by Notice serviced on the Third Party Member,
join the Third Party Member as a party to the Dispute.
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| 21.3 | The Ombudsman may impose such terms and
conditions as he or she thinks fit on a Respondent seeking to join a Third Party
Member including but not limited to the payment by the Respondent of costs or
the provision of security for future costs.
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| 21.4 | Where the Ombudsman joins a Member as a Third Party Member to the Dispute, the Ombudsman may give such directions as to the future conduct of the matter as the Ombudsman thinks fit. |
| SETTLEMENTS, RECOMMENDATIONS AND AWARDS | |
| 22.1 | At any time that a Dispute is under his
or her consideration, the Ombudsman may seek to promote a settlement of the
Dispute or withdrawal of the complaint ("Settlement") by agreement
between the disputing parties.
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22.2 |
If there is no such
agreement, the Ombudsman, at the request of either party concerned, may make a
written recommendation for settlement. However, the Ombudsman must first
give both parties at least one month's notice of his or her intention to make a
recommendation. During the period of that notice (or such longer period as
the Ombudsman may agree) either party may make further representations to the
Ombudsman in respect of the Dispute.
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| 22.3 | The recommendation must include a summary
of the Ombudsman's reasons for making the recommendation.
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| 22.4 | If the Ombudsman: |
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(a) |
proposes a Settlement on terms which appear to the Ombudsman to be acceptable to both parties; or | |
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(b) |
makes a recommendation for a Settlement; and | |
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(c)
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that Settlement involves the provision by a Member of valuable consideration (whether in the form of money payment or otherwise); | |
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then the Settlement proposed or recommended will bind the Member if, and only
if, within one month, the Applicant accepts the Settlement proposed or
recommended in full and final resolution of the Dispute.
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| 22.5 | The Ombudsman's proposal or
recommendation to the parties must state that it is open for acceptance by the
Applicant if, and only if, within one month, the Applicant accepts it in full
and final resolution of the Dispute.
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| 22.6 | Where the Applicant has, in writing,
accepted the settlement proposed or recommended by the Ombudsman in full and
final resolution of the Dispute, but the Respondent has not within one month
thereafter accepted the Settlement proposed or recommended, then the Ombudsman
may make an award against the Respondent in terms of the Settlement proposed or
recommended.
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| 22.7 | Where the Dispute is between Members
only, the Ombudsman must not propose or recommend a Settlement that includes, or
otherwise imposes, a pecuniary penalty, monetary or award or any other provision
of valuable consideration (whether in the form of money payment or otherwise)
except as to the costs of the Ombudsman and of the MI AA in relation to the
Dispute.
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| 22.8 | Where the Dispute is between a Member and
a Customer, a monetary award must not exceed $100,000. The award must not
be of greater amount than, in the opinion of the Ombudsman, is appropriate to
compensate the Applicant for direct loss or damage suffered by the Applicant by
reason of the acts or omissions of the Respondent.
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| 22.9 | An award made by the Ombudsman must be in
writing, state the amount awarded, and set out a summary of the Ombudsman's
reasons for making the award. The award must state that if within one
month after its issue, the Applicant agrees to accept it in full and final
resolution of the Dispute, the award shall be binding on the Applicant and the
Respondent.
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| 22.10 | The Ombudsman must issue a copy of the
award to the Applicant and the Respondent. The award will not bind the
Respondent unless and until the Applicant signs a form which is addressed to the
Ombudsman and the Respondent whereby the Applicant accepts the award in full and
final resolution of the Dispute.
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| 22.11 | In making any proposal, recommendation
or award under these Rules, the Ombudsman must do so by reference to what is, in
the Ombudsman's opinion, fair and reasonable in all the circumstances, and must
have regard to:
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|
(a) |
the MIAA Code of Practice; | |
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(b) |
general principles of good industry practice; and | |
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(c) |
any applicable rule of law or relevant judicial authority.
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| 22.12 | The Ombudsman is not bound by any
previous decision, recommendation or award made by him or her or any other
Ombudsman. In determining what are the principles of fairness and
reasonableness the Ombudsman may, where he or she considers appropriate, consult
within the Mortgage Industry.
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| 22.13 | Any proposal, recommendation or award of the Ombudsman must be made in accordance with these Rules. |
| PUBLICATION OF THE OMBUDSMAN'S DECISION | |
| 23.1 | Any proposal or recommendation for
settlement of a Dispute or withdrawal of any complaint, or any Award to be made,
by the Ombudsman will be in writing and include a statement of reasons
("Determination).
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| 23.2 | A copy of any Determination will be given
by the Ombudsman to the Applicant and Respondent concerned, the Scheme Manager,
the State Secretariat (on behalf of the State Council), and the National
Secretariat (on behalf of the National Council).
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| LIMITS ON THE OMBUDSMAN'S POWERS | |
| 24.1 | The Ombudsman has power to consider a
Dispute except:
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|
(a) |
if the Dispute relates to a person who is not a Member to whom the MIAA Code of Practice applies; | |
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(b) |
if at any time it appears to the Ombudsman that it is more appropriate that the Dispute be dealt with by a court, another independent complaints or conciliation procedure or under an arbitration procedure; | |
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(c) |
if it appears to the Ombudsman that:
(i) the amount which has been claimed or could be claimed in respect of the subject matter of the Dispute exceeds $100,000; or (ii) the claim comprised in the Dispute is part of a larger claim which the Applicant has made or could make, or is related to another claim which the Applicant has made or could make, and the aggregate of all such claims exceeds $100,000;
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(d) |
to the extent that the Applicant's complaint relates to
acts, omissions, policies, commercial judgments or any other matter of, by or
concerning a person other than the Respondent, including but not limited to a
person with whom the Respondent has dealt, is dealing or proposes to deal in
relation to the Mortgage Industry;
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(e) |
to the extent that the Dispute relates to a practice or
policy of the Respondent which does not itself give rise to a breach of any
obligation or duty owed by the Respondent to the Applicant at law or under the
Code or Practice;
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(f) |
to the extent that the Dispute relates to the level of any
fee, charge or commission except a complaint relating to non-disclosure or
misrepresentation in connection with these matters;
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(g) |
to the extent that the Dispute relates to any transaction
or dealing entered into outside Australia or in respect of which the underlying
mortgage security is over real estate situated outside Australia;
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(h) |
any Dispute under which the Applicant seeks any
compensation other than compensation for direct loss;
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(i) |
if the Respondent gives the Ombudsman a notice of the kind
referred to in paragraph 22.4 and the undertaking referred to in paragraph 22.6.
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| 24.2 | The Ombudsman must only consider, or
continue to consider, a Dispute if he or she is satisfied that:
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(a) |
the Applicant and Respondent have reached Deadlock in
relation to the complaint prior to referral of the Dispute to the Ombudsman;
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|
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(b) |
the complaint is made by or on behalf of the person to
whom the Mortgage Services in question were directly provided or who was a
borrower or guarantor in respect of a loan made by or arranged by the
Respondent;
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(c) |
subject to paragraph 24.2(d), the act or omission giving
rise to the complaint first occurred not more than six years before the
Applicant first made the complaint in writing to the Respondent provided that
where the act or omission giving rise to the complaint occurred more than six
years before the complaint is made, the Applicant could not reasonably have
become aware of the act or omission before the expiry of six years from the date
of the act or omission, in which event the said period of six years shall
commence on the date on which the Applicant should reasonably have become aware
of the said act or omission;
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(d) |
the act or omission giving rise to the complaint first
occurred on or after the date of commencement of MIOS;
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(e) |
except where relevant new evidence is available, the
subject matter of the complaint was not comprised in a complaint by the same
Applicant (or any one or more of them) previously considered by the Ombudsman;
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(f) |
except where both the Applicant and Respondent to the
dispute consent in writing to the Ombudsman considering it, neither the
complaint made to the Ombudsman nor any other complaint by the same Applicant
(or any one or more of them) in respect of the same subject matter is the
subject of:
(i) any proceedings in or before any court, tribunal, arbitrator, other ombudsman, or any other independent conciliation body or other dispute resolution scheme; or (ii) any investigation by a statutory ombudsman of any State or Territory or of the Commonwealth, or of any other ombudsman;
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(g) |
neither the complaint made to the Ombudsman nor any other
complaint by the same Applicant (or any one or more of them) in respect of the
same subject matter was the subject of proceedings in a Court or Tribunal, or
any arbitration, or any other proceedings before any other ombudsman, any other
independent conciliation body or other dispute resolution scheme in which a
judgment or decision on the merits has been given or otherwise concluded, or of
a completed investigation by a statutory ombudsman of any State or Territory or
of the Commonwealth or any other ombudsman;
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|
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(h) |
the Applicant and any other person to whom the Respondent
owes a duty of confidence in respect of any information which the Ombudsman may
request the Respondent to produce for the purpose of the Dispute, have waived in
writing that duty of confidence;
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(i) |
the complaint is not being pursued by the Applicant in a frivolous and vexatious manner or for an improper purpose. |
| 24.3 | Where the Ombudsman is satisfied that
a period of limitation for the commencement by either the Applicant or
Respondent of an action arising from the subject matter of the Dispute in a
Court or Tribunal is imminent:
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|
(a) |
the Ombudsman may direct that consideration of the Dispute be expedited with a view to resolving the Dispute prior to the expiry of the said period of limitation and for this purpose the Ombudsman may shorten any period of time specified herein for the acceptance of a proposal or recommendation or for acceptance of an award; | |
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(b) |
if the matter cannot be sufficiently expedited, and if the
parties do not otherwise agree to waive reliance on the said limitation period,
then the commencement by the party whose right of action is subject to the said
limitation period, of formal proceedings in relation to the subject matter of
the Dispute, will not affect the jurisdiction of the Ombudsman under these Rules
to consider this Dispute.
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| 24.4 | At any time before the Ombudsman makes
an award in relation to a Dispute, the Respondent may give to the Ombudsman
notice in writing stating that in the opinion of the Respondent the complaint
involves or may involve an issue which may have important consequences for the
business of the Respondent or Members generally or an important or novel point
of law.
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| 24.5 | A notice referred to in paragraph 24.4
must include a statement of reasons for the Respondent forming the opinion
referred to.
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| 24.6 | If the Respondent, having given notice
under paragraph 24.4, gives an undertaking that if within six months after the
receipt of the notice by the Ombudsman, either the Applicant or the Respondent
institutes in any Court or Tribunal in Australia with jurisdiction to make a
binding determination on the issue or point of law proceedings against the other
in respect of the complaint, the Member will:
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|
(i) |
pay the Applicant's costs and disbursements (to be taxed as agreed or if not agreed, on a solicitor and client basis) of the proceedings at first instance and any subsequent appeal proceedings commenced by the Respondent (except by way of respondent's notice, cross appeal or other similar procedures); and | |
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(ii) |
make interim payments of account of such costs if, and to
the extent that it appears reasonable to the Member to do so;
then the Ombudsman shall cease to consider the complaint and shall inform the Applicant in writing of the receipt of the notice and undertaking, the date of their receipt and the effect of the notice and undertaking on the Dispute. |
| OTHER POWERS AND DUTIES | |
| 25.1 | The Ombudsman may make recommendations
from time to time to the MIRC in relation to these Rules as they relate to the
MIOS or any relevant code(s) of industry practice which may be introduced and
which have a bearing on the discharge of the Ombudsman's responsibilities.
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| 25.2 | Subject to paragraph 25.3, the
Ombudsman must not disclose to any person any information concerning a Dispute
where it might be possible for another person to identify the Applicant or
Respondent or any other information of a confidential nature which he or she has
obtained in the course of his or her duties.
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| 25.3 | Paragraph 25.2 shall not prohibit the
disclosure of any information:
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|
(i) |
as required by any Relevant Government Authority, or as
otherwise required by law, or as properly and reasonably required in connection
with any legal proceedings instituted by or against the Ombudsman, the MIRC, the
Scheme manager, the MIAA, or any officer, employee consultant, independent
contractor or agent of the MIAA;
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(ii) |
to the Applicant, the Respondent, the MIAA, the Scheme
Manager, the MIAA, the National Council, National Secretariat, State Council, or
State Secretariat, or to any employee, consultant, independent contractor or
agent of the Ombudsman or the MIAA to the extent that such information is
reasonably required by that person for the purpose of performing his, her or its
duties by or under the Code of Practice or these Rules.
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| 25.4 | The Ombudsman must report to a
Respondent any threat or risk to staff or property of a Respondent of which the
Ombudsman becomes aware in the course of his or her duties.
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| STATUS OF INFORMATION SUPPLIED AND STATEMENTS MADE TO THE OMBUDSMAN | |
| 26. | All information provided to and
statements made by parties to a Dispute may not be used in any subsequent legal
proceedings.
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| ENFORCEMENT OF THE OMBUDSMAN'S AWARDS | |
| 27.1 | It is a condition of becoming or
remaining a member of the MIAA that a Member comply in full with any Award made
by an Ombudsman.
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| 27.2 | Where a Member fails to comply in full
with an Ombudsman's Award, the Ombudsman must as soon as practicable report that
failure to the National Secretariat on behalf of the National Council.
Whenever possible, within 14 days (but in any case promptly) after any
notification by the Ombudsman of a Member's failure to comply in full with an
Ombudsman's Award, the National Secretariat on behalf of National Council must
issue a Direction to Comply to the Member in default.
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| 27.3A |
Direction to Comply must: (i) describe the act of non-compliance, (ii) permit the Member fifteen business days, or such longer period as the National Council may determine as reasonable in the circumstances, to comply with the Ombudsman's Award, and (iii) notify the Member that if the Ombudsman's Award is not complied with in full by the date appointed for the purpose, the National Council will, subject to any necessary prior written notification to the Australian Securities Commission or such other relevant Government Authority, forthwith proceed to take such action required under the Constitution of the MIAA to terminate that Member's membership.
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| 27.4 | Where a Member has failed to comply with a Direction to Comply within the time specified therein for compliance, the National Council will, subject to any necessary prior written notification to any Relevant Government Authority, forthwith proceed to take such action required by the Constitution of the MIAA to terminate that Member's membership. |
Notes:
1. MIOS Rules - Edition 1 - Promulgated 24 May 2000