In 2016, machinery that was security for Tui’s business loan was repossessed by her lender because she was in arrears.
In 2022, Tui complained that she had not received the lender’s written demands before the repossession. Tui said she did not know about the repossession until a repossession agent arrived to take her machinery. Tui said she would easily have been able to clear the arrears and avoid the repossession if she had known about the demands.
The lender held the machinery for six weeks. Tui said the lender made it impossible to carry on with the loan after the machinery was returned to her. She had to refinance with a different lender, at a higher interest rate. Her business was never able to financially recover from the repossession.
The lender believed they had not done anything wrong. Tui was not satisfied with the lender’s response and she asked FSCL to investigate her complaint.
Tui wanted the lender to compensate her around $110,000 for financial loss. This included the costs to transport the machinery back to Tui’s business premises after the repossession, lost profits while the lender had the machinery, the costs of refinancing, and paying higher interest costs to the lender she had refinanced with.
Tui also wanted the lender to pay her $5,000 for the stress and anxiety she had suffered. This is the maximum amount FSCL can award for non-financial loss.
The lender did not agree to compensate Tui. They said they followed correct procedure for the repossession and their demands were sent to Tui in accordance with the terms of the security agreement.
We concluded that we could not investigate most of Tui’s complaint.
Under our rules, known as our terms of reference, we cannot consider a complaint where more than six years have passed from the date the consumer became aware, or should reasonably have become aware, of the act or omission that led to the complaint.
The repossession happened more than six years before when Tui contacted FSCL about her complaint. There was also evidence that Tui knew about the arrears and demands before the repossession. The lender had notes about telephone calls with Tui and her staff member about the expired demands. They did not recall the telephone calls but we favoured the lender’s evidence. The lender’s written records from 2016 were more reliable than Tui’s recollection in 2022–2023 of events that occurred in 2016.
We also concluded that it was unlikely that Tui would have been successful with her claim for compensation. Most of the costs Tui had claimed for financial loss were not direct losses. FSCL can only consider financial losses which the consumer has suffered as a direct result of something the scheme member did wrong. We cannot award compensation for consequential loss except to the extent that it may be covered by compensation for non-financial loss.
We gave Tui our initial views and she agreed to discontinue her complaint.
Insights for consumers
We encourage consumers to raise concerns they have with their lender in a timely manner.
If the consumer delays with making their complaint, we may not be able to consider it because of time limitations in our rules. Further, a lender and consumer are usually more likely to find an agreed outcome to a complaint if it is made to the lender or FSCL in a timely manner.