FEDERAL COURT OF AUSTRALIA
Australian Securities and Investments Commission v BHF Solutions Pty Ltd (No 2) [2023] FCA 787
ORDERS
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Applicant | ||
AND: | BHF SOLUTIONS PTY LTD (ACN 631 775 123) First Respondent CIGNO PTY LTD (ACN 612 373 734) Second Respondent | |
DATE OF ORDER: |
THE COURT DECLARES THAT:
Against the First Respondent
1. Pursuant to s 166 of the National Consumer Credit Protection Act 2009 (Cth) (Act), that from 18 October 2019 until 14 April 2020, BHF Solutions Pty Ltd (BHFS) contravened s 29(1) of the Act by engaging in a credit activity without holding an Australian Credit Licence (ACL) authorising BHFS to engage in that activity, being the activity of being “a credit provider under a credit contract” as specified in item 1(a) of s 6 of the Act, in that:
(a) on 1 July 2019, BHFS entered into a loan management facilitation agreement with Cigno Pty Ltd (Cigno), subsequently amended from 12 September 2019 (BHFS/Cigno Agreement), under which Cigno was to manage loan agreements BHFS entered into with borrowers, in accordance with the conditions of the BHFS/Cigno Agreement, which included that Cigno was able to charge the borrower fees at Cigno’s discretion;
(b) on 18 October 2019:
(i) BHFS entered into a continuing credit contract with Ms Leah Morrow (Ms Morrow) under which BHFS was, and remained until 14 April 2020, a credit provider; and
(ii) Cigno entered into a services agreement with Ms Morrow under which Ms Morrow was charged, amongst other fees, a financial supply fee calculated as a base amount of $13 plus 60% of the loan amount (Financial Supply Fee); and
(c) the Financial Supply Fee was a “charge that is or may be made for providing the credit” within the meaning of s 6(5) of the National Credit Code (Code) in Sch 1 of the Act, that credit being credit provided by BHFS.
2. Pursuant to s 166 of the Act, that from 18 October 2019 until 14 April 2020, BHFS contravened s 29(1) of the Act by engaging in a credit activity without holding an ACL authorising BHFS to engage in that activity, being the activity of “carr[ying] on a business of providing credit being credit the provision of which the Code applies to” as specified in item 1(b) of s 6 of the Act, in that:
(a) on 1 July 2019, BHFS entered into the BHFS/Cigno Agreement with Cigno under which Cigno was to manage loan agreements BHFS entered into with borrowers, in accordance with the conditions of the BHFS/Cigno Agreement, which included that Cigno was able to charge the borrower fees at Cigno’s discretion;
(b) on 18 October 2019, BHFS entered into a credit contract with Ms Morrow (Morrow Credit Contract) under which BHFS was a credit provider;
(c) on 18 October 2019, Cigno entered into a services agreement with Ms Morrow, in respect of which further drawdowns were made on 2 December 2019 and on 11 January 2020, under which, among other fees, Cigno charged Ms Morrow a Financial Supply Fee that was calculated as a base amount of $13 plus 60% of the loan amount; and
(d) the Financial Supply Fee was a “charge that is or may be made for providing the credit” within the meaning of s 6(5) of the Code in Sch 1 of the Act, that credit being credit provided by BHFS.
Against the Second Respondent
3. Pursuant to s 166 of the Act, that Cigno contravened s 29(1) of the Act, by engaging in a credit activity without holding an ACL authorising Cigno to engage in that activity, being the activity of “exercis[ing] the rights of a credit provider in relation to a credit contract” as that “credit activity” is specified in item 1(c) of s 6(1) of the Act, in that:
(a) on 1 July 2019, BHFS entered into the BHFS/Cigno Agreement with Cigno under which Cigno was to manage loan agreements BHFS entered into with borrowers, in accordance with the conditions of the BHFS/Cigno Agreement, which included that Cigno was able to charge the borrower fees for its services at Cigno’s discretion;
(b) on 18 October 2019:
(i) BHFS entered into a continuing credit contract with Ms Morrow under which BHFS was, and remained until 14 April 2020, a credit provider; and
(ii) Cigno entered into a services agreement with Ms Morrow under which Ms Morrow was charged, amongst other fees, a Financial Supply Fee;
(c) from 18 October 2019 until about 20 April 2020, Cigno exercised BHFS’s rights in relation to the continuing credit contract by:
(i) maintaining accounts and records with respect to Ms Morrow;
(ii) arranging for the collection of payments from Ms Morrow by arranging for her bank account to be directly debited by third party providers and paid to Cigno;
(iii) monitoring Ms Morrow’s repayments, including their due date and arranging for changes to Ms Morrow’s repayment schedule; and
(iv) notifying Ms Morrow on 5 February 2020 and 4 March 2020 that she had defaulted on her repayments and demanding that she remedy those defaults,
(together, the conduct in (a)-(c) is the Cigno Services Activities).
4. Pursuant to s 166 of the Act, that Cigno contravened s 29(1) of the Act by engaging in a credit activity without holding an ACL authorising Cigno to engage in that activity, being the activity of providing a “credit service” as that “credit activity” is specified in item 2 of s 6(1) and defined in s 7 of the Act, in that:
(a) on 18 October 2019, 28 November 2019, 9 January 2020 and 20 April 2020, Cigno provided credit assistance to Ms Morrow as defined in s 8(a) the Act, by suggesting that she apply for a particular credit contract with a particular credit provider, being BHFS; and
(b) on 18 October 2019, Cigno provided credit assistance to Ms Morrow as defined in s 8(d) of the Act, by assisting Ms Morrow to apply for the particular credit contract with BHFS, being the Morrow Credit Contract,
(together, the conduct in (a) and (b) is the Cigno Credit Assistance Activities);
(c) on 18 October 2019, Cigno acted as an intermediary as defined in s 9(a) of the Act between BHFS and Ms Morrow for the purpose of securing a provision of credit for Ms Morrow under a credit contract with BHFS by:
(i) assessing the information provided by Ms Morrow and recommending Ms Morrow’s loan application or requests for further advance to BHFS; and
(ii) sending Ms Morrow the proposed credit contract between Ms Morrow and BHFS and approval emails, after receiving approval from BHFS,
(the Cigno Intermediary Activities).
THE COURT ORDERS THAT:
Against the First Respondent
1. Pursuant to s 177(1) of the Act, in respect of loan agreements between BHFS and consumers entered into in accordance with the BHFS/Cigno Agreement before the date of this order, BHFS be permanently restrained, whether by its servants, agents or employees, from being a “credit provider under a credit contract” or “carrying on a business of providing credit, being credit the provision of which the [Code] applies to” (as each of these “credit activities” is defined in s 6(1) of the Act) including by:
(a) providing a line of credit to consumers;
(b) providing advances of funds to consumers; and
(c) collecting and receiving monies corresponding to repayments for amounts advanced by and/or fees charged by BHFS.
2. Pursuant to s 177(1) of the Act, the Court orders that BHFS be restrained, whether by its servants, agents or employees, for so long as it does not hold an ACL under s 35 of the Act authorising it to engage in the credit activities, from:
(a) being a “credit provider under a credit contract” and “carrying on a business of providing credit, being credit the provision of which the [Code] applies to” (as each of these “credit activities” is defined in s 6(1) of the Act) (Credit Activities) by lending in accordance with the BHFS/Cigno Agreement; and
(b) entering into any agreement on the same terms as the BHFS/Cigno Agreement with any person to engage in the Credit Activities.
Against the Second Respondent
3. Pursuant to s 177(1)(a) of the Act, in respect of services agreements Cigno entered into with consumers before the date of this order in accordance with the BHFS/Cigno Agreement, and in respect of the corresponding loan agreements between those consumers and BHFS (Loan Agreements), Cigno be permanently restrained, whether by its servants, agents or employees, from:
(a) exercising the rights of a credit provider in relation to a credit contract or proposed credit contract within the meaning of item 1(c) in s 6(1) of the Act, by:
(i) maintaining accounts and records with respect to the consumers;
(ii) arranging for the collection of payments by consumers by arranging for customers’ bank accounts to be directly debited;
(iii) monitoring repayments by consumers including their due date and arranging for changes to their repayment schedules;
(iv) advising consumers when they have defaulted on their repayments and demanding that the customers remedy those defaults;
(v) collecting monies from consumers corresponding to repayments for amounts advanced or fees charged, including by entering contracts or arrangements for third parties to collect those monies; and
(vi) transferring money collected from consumers to BHFS, which money corresponds to repayments of amounts advanced by, and fees charged by, BHFS under Loan Agreements;
(b) providing credit assistance to a consumer as that credit activity is defined in s 8(a) and s 8(d) of the Act, by:
(i) suggesting that consumers apply for a particular credit contract with a particular credit provider, being BHFS; and
(ii) assisting consumers to apply for a particular credit contract with BHFS;
(c) acting as an intermediary as that credit activity is defined in s 9(a) of the Act, by undertaking any of the Cigno Intermediary Activities in respect of a consumer.
4. Pursuant to s 177(1) of the Act, Cigno be restrained, whether by its servants, agents or employees, for so long as it does not hold an ACL, under s 35 of the Act, authorising it to engage in these credit activities, from entering into any agreement on the same terms as the BHFS/Cigno Agreement, with any person, to engage in the Cigno Services Activities, the Cigno Credit Assistance Activities and/or the Cigno Intermediary Activities in respect of a consumer.
Costs
5. Within 14 days of these orders, the parties are to provide, by email, to the Associate of Halley J, agreed or competing orders for costs.
6. In the event of competing orders, the parties are to provide written submissions of no more than 3 pages and any affidavit evidence in support of their respective positions.
7. The making of costs orders be dealt with on the papers unless any party seeks an oral hearing, in which event that is to be communicated in the email referred to in Order 5 of these orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
HALLEY J:
[1] | |
[11] | |
[11] | |
[13] | |
[13] | |
[16] | |
[33] | |
[54] | |
[59] | |
[64] | |
[81] | |
[87] | |
[87] | |
[88] | |
[95] | |
[103] | |
[103] | |
[103] | |
[105] | |
[114] | |
[135] | |
[150] | |
[150] | |
[157] | |
[169] |
1 In Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2022] FCAFC 108 (FCJ), the Full Court of this Court remitted these proceedings for determination of the allegations advanced by the applicant, the Australian Securities and Investments Commission (ASIC), against the second respondent, Cigno Pty Ltd (Cigno), and the relief sought by ASIC against the first respondent, BHF Solutions Pty Ltd (BHFS): at FCJ [215]-[217], [218].
2 In Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2021] FCA 684 (Primary Judgment or J), I concluded that ASIC had not established that a business model operated by BHFS and Cigno since September 2019, pursuant to which BHFS provided loans to borrowers and Cigno provided services to borrowers, constituted the provision of credit under the National Credit Code (Code) in Sch 1 to the National Consumer Credit Protection Act 2009 (Cth) (Act).
3 In summary, ASIC contended that by reference to three separate drawdowns of a loan advanced by BHFS to Ms Leah Morrow between 18 October 2019 and 14 April 2020, both BHFS and Cigno had engaged in credit activities within the meaning of s 6 of the Act: at J [6]. Neither BHFS nor Cigno held an Australian Credit Licence (ACL). Pursuant to s 29 of the Act, a person is relevantly prohibited from engaging in any credit activity without holding an ACL.
4 ASIC alleged that BHFS engaged in credit activities by being a credit provider under a credit contract and by carrying on a business of providing credit to which a provision of the Code applied: at J [8].
5 ASIC alleged the Cigno engaged in credit activities by providing a credit service and exercising the rights of a credit provider in relation to a credit contract or proposed credit contract: at J [9].
6 Section 6 of the Code sets forth a series of exceptions to the application of the Code to contracts that provide for the provision of credit. These exceptions, relevantly, include the provision of credit under a continuing credit contract where first, the only charge that is or may be made for providing the credit is a periodic or other fixed charge that does not vary according to the amount of credit provided and second, the amount charged does not exceed the maximum charge prescribed in the National Consumer Credit Protection Regulations 2010 (Cth): s 6(5) of the Code.
7 The principal findings in the Primary Judgment were that:
(a) at least BHFS was carrying on a business of providing credit: at J [82];
(b) ASIC could not rely on the extended definition of contract in s 204(1) of the Code for the purpose of making Cigno a party to the relevant credit contract: at J [123];
(c) at all relevant times, Cigno was acting as the agent of Ms Morrow or on its own behalf: at J [127];
(d) the charges for the services provided by Cigno in connection with credit services provided by BHFS, as identified in the Statement of Agreed Facts (SOAF) at [11], were not charges for providing the loans made by BHFS to Ms Morrow for the purposes of s 5(1)(c) and s 6(5) of the Code: at J [150]-[160]; and
(e) the only charges imposed for the provision of credit was the $15 fee charged by BHFS under the loan agreement between BHFS and Ms Morrow: at J [160].
8 The Full Court, however, determined that the charges for the services provided by Cigno in connection with credit services provided by BHFS were charges for providing the loans made by BHFS to Ms Morrow under s 5(1)(c) and s 6(5) of the Code. The Full Court, therefore, found that BHFS had contravened the Act by engaging in credit activity within the meaning of s 6(1) of the Act without holding an ACL.
9 Given my principal findings summarised above, it had not previously been necessary to determine whether Cigno engaged in credit activities by (a) providing a credit service, or (b) exercising the rights of a credit provider in relation to a credit contract or a proposed credit contract. Nor was it necessary to consider the form of the declaratory and injunctive relief sought by ASIC with respect to BHFS and Cigno.
10 For the reasons that follow, I have concluded that (a) Cigno has also contravened the Act by engaging in credit activity, within the meaning of s 6(1) of the Act, without holding an ACL, and (b) the declaratory and injunctive relief, substantially in the form sought by ASIC, should be respectively made and granted.
B. LIABILITY FINDINGS AGAINST CIGNO
11 ASIC contends that Cigno contravened s 29(1) of the Act by engaging in the following classes of credit activity within s 6(1) of the Act, without holding an ACL:
(a) providing a credit service to Ms Morrow pursuant to item 2 in s 6(1) of the Act (Credit Service Claim); and
(b) exercising the rights of a credit provider in relation to the credit contract between Ms Morrow and BHFS (Rights Claim).
12 ASIC relies on the factual findings made by the Full Court, the factual findings in the Primary Judgment that were not disturbed by the findings of the Full Court, the SOAF, the Agreed Tender Bundle and a document entitled “Evidence relied upon by the Applicant”, filed on 9 April 2021.
13 ASIC advances the Credit Service Claim on two alternative bases, consistent with the two types of credit service defined in s 7 of the Act.
14 First, ASIC contends that Cigno provided a credit service to Ms Morrow by providing her with credit assistance, within the meaning of s 8 of the Act, (a) on 18 October 2019, 28 November 2019, 9 January 2019, 9 January 2020 and 20 April 2020 by suggesting she apply for a credit contract with BHFS, and (b) on 18 October 2019 by assisting Ms Morrow to apply for a credit contract with BHFS (Credit Assistance Claim).
15 Second, ASIC contends that between 8 October 2019 and on or about 20 April 2020, Cigno acted as an intermediary between Ms Morrow and BHFS, within the meaning of s 9 of the Act (Intermediary Claim).
B.2.2. Credit Assistance Claim
16 Section 8 of the Act relevantly provides:
8 Meaning of credit assistance
A person provides credit assistance to a consumer if, by dealing directly with the consumer… in the course of, as part of, or incidentally to, a business carried on in this jurisdiction by the person or another person, the person:
(a) suggests that the consumer apply for a particular credit contract with a particular credit provider; or
…
(d) assists the consumer to apply for a particular credit contract with a particular credit provider; or
…
It does not matter whether the person does so on the person’s own behalf or on behalf of another person.
17 The words suggests and assists in s 8(a) and s 8(d) of the Act, respectively, are not defined.
18 ASIC submits that the words should be given their respective ordinary and natural meanings, within their relevant context in the Act. It submits that the Macquarie Dictionary Online definition of suggest is, relevantly, “to place or bring (an idea, proposition, plan, etc) before a person’s mind for consideration or possible action” or “to propose (a person or thing) as suitable or possible”. It submits that the dictionary definition of assist is “relevantly to give support, help, or aid to in some undertaking or effort [etc]”.
19 ASIC submits that on 18 October 2019, 28 November 2019, 9 January 2020 and 20 April 2020, Cigno suggested to a consumer, Ms Morrow, that she apply for a particular credit contract with a particular credit provider, being BHFS, within the meaning of s 8(a) of the Act.
20 Given the findings of the Full Court, Cigno does not oppose the findings sought by ASIC that Cigno provided credit assistance to Ms Morrow on 18 October 2019, within the meaning of s 8(a) and s 8(d) of the Act.
21 I am satisfied that Cigno provided credit assistance to Ms Morrow within the meaning of s 8(a) and s 8(d) of the Act on 18 October 2019. As the Full Court found at FCJ [66] and [211] (O’Bryan J with Besanko J agreeing at [1] and Lee J agreeing at [2]), on 18 October 2019:
(a) Ms Morrow accessed the Cigno Website to complete an online loan application for an advance of funds of $200;
(b) Ms Morrow was given the option of using the “Cigno Premium Service” or dealing directly with “the lender”;
(c) Ms Morrow continued with the “Cigno Premium Service”;
(d) Cigno sent a text message and an email confirming that her application had been approved (Morrow Loan);
(e) the email relevantly stated:
You have been approved! To complete your application, please follow the link provided below to find out your loan limit, read and accept your agreements … Thank you for choosing Cigno, the Emergency Cash Specialists.
(f) the text similarly stated that Ms Morrow’s application was “APPROVED!” and directed her to “Find out your Loan Limit & Finalise via” the link provided;
(g) the agreements generated from the links in both the email and text message were a Services Agreement with Cigno (Morrow Services Agreement) and Loan Agreement with BHFS (Morrow Loan Agreement);
(h) the Morrow Loan Agreement was a credit contract and BHFS was thus a credit provider within the meaning of item 1(a) of s 6(1) of the Act and carrying on a business of providing credit, being the provision of credit to which the Code applied, within the meaning of item 1(b) of s 6(1) of the Act;
(i) after Ms Morrow accepted the Morrow Loan Agreement and the Morrow Services Agreement, Cigno sent a “welcome email” to Ms Morrow, which attached both agreements and noted that those agreements provided Ms Morrow with:
everything [she had] to know about repayment dates, amounts, deviations and additional costs in the event of a default.
22 Cigno submits, however, that the credit assistance finding should not extend to 28 November 2019, 9 January 2020 and 20 April 2020 (Subsequent Dates) because there was, relevantly, only a single credit contract.
23 ASIC relies on the following statement that was included in an email and text message from Cigno to Ms Morrow on 28 November 2019 and in an email Cigno sent to Ms Morrow on 9 January 2020 to establish its provision of credit assistance case on those dates:
We’re here for our valued clients. If, at any time, you need another small cash advance, simply visit the website.
24 ASIC relies on a similar statement in an email sent by Cigno to Ms Morrow on 20 April 2020 to establish its provision of credit assistance case on that date in the following terms:
We want you to understand that we are here for all our valued clients, and that if at any time you need another small cash advance simply reapply online via our member portal:https://members.cignoloans.com.au/
25 Cigno submits that in construing s 8(a) of the Act, it is important to have regard to the phrases “a particular credit contract” and “a particular credit provider” and to bear in mind the distinction between a suggestion and an invitation. It submits that the evidence relied upon by ASIC to establish credit assistance on 28 November 2019 and 9 January 2020 rises no higher than an invitation to visit a website. It submits that while the 20 April 2020 text may have used the language “reapply”, in substance, it is simply in the form of an invitation to do something, without any particular credit contract or any particular credit provider “being in view”.
26 I am satisfied that Cigno did provide credit assistance to Ms Morrow on each of the Subsequent Dates for the following reasons.
27 First, I do not accept that there is any relevant distinction between a suggestion and an invitation in the present context.
28 The Macquarie Dictionary Online definition of invitation includes both “the written or spoken form with which a person is invited” and “attraction or allurement”. The Macquarie Dictionary Online definition of suggest, relevantly, includes placing or bringing an “idea, proposition or plan” to a person’s attention for “consideration or possible action” and to propose a thing as “suitable or possible”.
29 I am satisfied, particularly given the beneficial and protective purpose of the Act and the Code, that statements to the effect that if a person needs “another small cash advance” they should “visit the website” or “simply reapply online” readily fall within the language of both (a) an “attraction or allurement”, and (b) placing or bringing an “idea, proposition or plan” to a person’s attention for “consideration or possible action” and to propose a thing, being a new loan, as “suitable or possible”.
30 Second, I am satisfied that the invitation on the Cigno website to “reapply online” for a loan comfortably constitutes a suggestion to apply for a credit contract with a “particular credit provider”. I am also satisfied that an invitation to visit the Cigno website if “at any time you need another small cash advance” is a suggestion to apply for a credit contract with a “particular credit provider”.
31 Third, the phrase “a particular credit contract” should be construed expansively and should not be limited to a credit contract in a specific amount for a specific purpose, particularly given the beneficial and protective purpose and object of the Act and the Code. Section 8(a) of the Act is concerned with the character or form of the credit contract and the identity of the credit provider. I am satisfied that a suggestion in the form of an invitation made to a “valued client” on behalf of a particular credit provider to visit the credit provider’s website or reapply online if the “valued client” needs another “small cash advance”, is sufficient to constitute a suggestion to apply for a “particular credit contract”. Namely, a credit contract in the form of the previous credit contract obtained by Ms Morrow on the Cigno website from BHFS for a small cash advance.
32 Fourth, and relatedly, the meaning to be given to “a particular credit contract” is informed by the context in which that expression is used in s 8(a) of the Act. A suggestion to apply for a “particular credit contract” focuses attention on the conduct of the person said to be making the suggestion rather than on the person seeking a credit contract. A person can suggest a particular credit contract may be suitable or available to another person without receiving an application or enquiry from a person for a particular credit contract. Section 8(a) does not state that the suggestion of a credit contract must be in response to a specific enquiry. The person suggesting a particular credit contract might also have no specific knowledge of what amount might be sought, or even if the person to whom the credit contract is suggested was even contemplating entry into a credit contract at the time the suggestion was made.
33 As I explained at [21] above, the Full Court determined that BHFS was a credit provider and that the Morrow Loan Agreement was a credit contract.
34 ASIC submits that given these findings by the Full Court, Cigno engaged in a credit activity by providing a “credit service” within item 2 in s 6(1) of the Act, by acting as an intermediary between a credit provider, BHFS, and a consumer, Ms Morrow, within the meaning of s 7(b) and s 9(a) of the Act, in the period from 18 October 2019 until, at least, on or about 20 April 2020.
35 Section 7(b) of the Act provides that a person provides a credit service if the person “acts as an intermediary”.
36 Section 9 of the Act relevantly provides:
9 Meaning of acts as an intermediary
A person acts as an intermediary if, in the course of, as part of, or incidentally to, a business carried on in this jurisdiction by the person or another person, the person:
(a) acts as an intermediary (whether directly or indirectly) between a credit provider and a consumer wholly or partly for the purposes of securing a provision of credit for the consumer under a credit contract for the consumer with the credit provider; or
…
It does not matter whether the person does so on the person’s own behalf or on behalf of another person.
(Emphasis added.)
37 The word “intermediary” is not defined in the Act. Its ordinary and natural meaning in the relevant context, as supplied by the Macquarie Dictionary Online, is “acting between persons, parties, etc: serving as an intermediate agent or agency”, “an intermediate agent or agency; a go-between”, or “a medium or means”.
38 The Consolidated Explanatory Memorandum for the National Consumer Credit Protection Bill 2009 (Cth) (Consolidated EM), provided the following explanation of the term intermediary in s 9:
2.41 The definition is intended to regulate every person who may be an intermediary between the consumer and the credit provider. Innovations in credit product design and delivery now mean that a consumer may pass through a number of hands between the first person they deal with and the lender, and may be uncertain as to the roles or functions of all these different parties. It is intended that the licensing requirement will apply to all these persons.
…
2.43 The definition is intended to apply to situations such as:
• finance brokers where, after recommending a particular credit contract, they proceed to arrange the credit with the credit provider;
…
• mortgage managers, where they are involved in arranging the credit (in addition to managing the credit once it has been provided); and
• persons who refer the customer to another person, where this is done for the purpose of securing credit.
39 It was stated in the Second Reading Speech for the Bill that:
Participants will need to be registered or licenced if they engage in any of the following activities:
…
• exercising rights as a mortgagee or the beneficiary of a guarantee;
• acting as an intermediary between the borrower and the lender. This principally covers finance brokers, however the definition also covers bodies such as mortgage managers and aggregators; or
• suggesting or providing assistance in respect of a specific credit contract or lease with a particular credit provider.
40 ASIC submits that the test in s 9 as to what is necessary to establish that a person is acting as an intermediary, is “broad, lacking any categorisation of defined types of persons who qualify as intermediaries”. It submits that there is no need to establish that the alleged intermediary falls within one of the categories identified by way of example in the Consolidated EM or the Second Reading Speech.
41 The word securing in s 9(a) is not defined in the Act. Its ordinary and natural meaning in the relevant context supplied by the Macquarie Dictionary Online, is “to get hold or possession of; obtain”.
42 ASIC submits that:
The provision of credit is an ongoing activity. This is particularly the case in the context of a continuing credit contract. The meaning of “securing” a provision of credit is obtaining and having the provision of credit, rather than simply entering the contract that is the commencement of that state of affairs. Securing a provision of credit covers matters occurring after entry into the credit contract and during the provision of credit, including arrangements for payments, the provision of statements of account and other aspects of the management of the provision of credit.
43 ASIC relies on the following conduct of Cigno in relation to Ms Morrow’s initial drawdown on 18 October 2019 and the two further drawdowns on 2 December 2019 (First Further Morrow Drawdown) and 11 January 2020 (Second Further Morrow Drawdown) to establish that Cigno acted as an intermediary between BHFS, as a credit provider, and Ms Morrow to secure the provision of credit for Ms Morrow:
(a) assessing the information provided by Ms Morrow in accordance with BHFS’s and Cigno’s assessment guidelines and recommending Ms Morrow’s application to BHFS;
(b) sending to Ms Morrow the approval emails, after it had received the approval of BHFS for Ms Morrow’s application; and
(c) managing the Morrow Loan Agreement throughout the life of the loans by undertaking the Cigno Services under the Morrow Services Agreement, including providing statements of account to Ms Morrow, arranging for collection of payments from her, monitoring her repayments, notifying her of defaults and demanding repayment (Cigno Management Services).
44 Cigno submits that s 9(a) of the Act naturally directs attention to a provision of credit that is secured (if at all) after the intermediary has acted for the purpose of securing that provision of credit. It submits that:
Acts done after a provision of credit under a credit contract are not acts done wholly or partly for the purposes of securing the provision of credit under the credit contract. The purpose of securing the provision of credit has ceased to exist by the time these subsequent acts are performed. By this time, the credit contract and the provision of credit under it are historical facts. The subsequent acts and their purposes are no longer the same. They may be acts for the purposes of managing, or providing administrative services in connection with, the credit contract. But they are not acts for the purposes of securing a provision of credit under the credit contract.
45 Cigno submits that its construction of s 9(a) is supported by both the Second Reading Speech in which it is stated that the section “principally covers finance brokers” and the following extract at [2.41] of the Consolidated EM:
[i]nnovations in credit product design and delivery now mean that a consumer may pass through a number of hands between the first person they deal with and the lender, and may be uncertain as to the roles or functions of all these different parties. It is intended that the licensing requirements will apply to all these persons.
46 Cigno also relies on the statements in the Consolidated EM that (a) a person’s involvement might involve “preparing or passing on information” at the request of a consumer but if “their role is wholly or partially to secure credit or a lease” then they will require an ACL: at [2.42], and (b) the “definition is intended to apply to situations such as”, relevantly, “mortgage managers, where they are involved in arranging the credit (in addition to managing the credit once it has been provided)”: at [2.43].
47 I am not satisfied that a person can act as an intermediary for the purposes of s 9(a) of the Act after a credit contract has been obtained for the following reasons.
48 First, from a textual perspective, there is no discernible distinction between the concept of “obtaining” a credit contract and “to get hold or possession of” a credit contract. Both limbs of the relevant dictionary definition of securing focus on conduct prior to entry into a credit contract. By the use of the present tense, both “obtaining” and “to get” speak to a period leading up to entry into a credit contract. Once a credit contract has been entered into it has been secured and the present tense is relevantly exhausted. The use of the present tense in s 9(a) is necessary to identify the conduct that is being engaged in for the purpose of securing, in the sense of obtaining or getting hold or possession of, the credit contract. In context, it cannot be said to carry with it any implication that it is intended to capture conduct that occurs after the credit contract has been secured.
49 Second, and relatedly, there is a material distinction between securing a credit contract and managing or providing services in connection with a credit contract that has been obtained or “got”. There is no textual support in s 9(a) for any conduct beyond the securing of a credit contract. The Cigno Management Services were all provided after the credit contract had been secured. They unquestionably constituted conduct that was wholly or partly for the purpose of providing management services under a credit contract but were not provided wholly or partly for the purpose of securing a credit contract.
50 Third, contextually, the provision of services of the character of the Cigno Management Services would appear, at least on a prima facie basis, to fall within item 1(c) of the table identifying the meaning of credit activity in s 6 of the Act. Item 1(c), which is extracted below at [54] in the course of addressing the Rights Claim, is directed at a person performing obligations and exercising rights of a credit provider in relation to a credit contract.
51 Fourth, the limitation of acts as an intermediary in s 9(a) to acts done prior to entry into the credit contract, is supported by the extrinsic material relied upon by Cigno and referred to at [45] to [46] above. The extrinsic material includes, most significantly, the statement that s 9 is intended to apply to mortgage managers, “where they are involved in arranging the credit (in addition to managing the credit once it has been provided)”. The clear implication from this statement is that the legislative intention was that s 9 was not intended to apply to mortgage managers where they were not involved in arranging the credit.
52 For these reasons, ASIC has not established that Cigno acted as an intermediary, within the meaning of s 9 of the Act, after 18 October 2019. In this case, there was a single credit contract under which credit was relevantly secured on 18 October 2019.
53 Cigno does not contest, and I accept, that ASIC has established that Cigno acted as an intermediary, within the meaning of s 9 of the Act, on 18 October 2019, by (a) assessing the information provided by Ms Morrow in accordance with the assessment guidelines of BHFS and Cigno, (b) recommending her application to BHFS for approval, and then (c) subsequently sending emails and text messages to Ms Morrow confirming her application had been approved.
54 Item 1(c) in the table in s 6(1) of the Act, relevantly, provides that a person engages in a credit activity if:
(c) the person performs the obligations, or exercises the rights, of a credit provider in relation to a credit contract or proposed credit contract (whether the person does so as the credit provider or on behalf of the credit provider);
55 In the period between 18 October 2019 and 20 April 2020, Cigno:
(a) maintained accounts and records with respect to Ms Morrow’s credit contract;
(b) collected payments from Ms Morrow by arranging for her bank account to be directly debited by third party providers and paid to Cigno and then transferring the amounts advanced to Ms Morrow, together with the BHFS Fees, to BHFS;
(c) monitored Ms Morrow’s repayments, including their due date, and arranged for changes to Ms Morrow’s repayment schedule, advised her that payments were due on repayment dates and when her repayment schedule or amount had changed; and
(d) provided default notices to Ms Morrow on the letterhead of Cigno and BHFS,
(together, the Cigno Related Services).
56 ASIC contends that by providing the Cigno Related Services, Cigno engaged in a credit activity on behalf of BHFS, within the meaning of item 1(c) in s 6(1) of the Act, by exercising the rights of a credit provider in relation to the Morrow Loan Agreement.
57 ASIC submits that the Cigno Related Services encompassed the right to receive performance of the Morrow Loan Agreement and the right to remedy a default under the Morrow Loan Agreement.
58 ASIC advances two alternative constructions of item 1(c) in s 6(1) of the Act. Its first construction is that it is sufficient to establish that the rights being exercised in relation to the credit contract are rights that could generally be exercised by a credit provider (first construction). Its second, and primary construction, is that the rights being exercised in relation to the credit contract must be rights that the credit provider had in relation to the credit contract (second construction).
B.3.1. ASIC’s first construction
59 Cigno submits that the first construction should be rejected because it (a) is contrary to ASIC’s pleading in the Amended Statement of Claim (ASOC) at [121(d)], which is expressly predicated on the “rights of BHFS”, (b) is contrary to what O’Bryan J held at FCJ [214], was required on remitter, namely to assess whether the rights exercised by Cigno were the rights of BHFS as opposed to the rights of Cigno, and (c) proceeds upon an incorrect construction of item 1(c) of s 6(1) of the Act.
60 Cigno submits that item 1(c) is not directed to the rights “of a credit provider” in the abstract, but rather to the rights of a particular credit provider, that is, the credit provider in the credit contract or proposed credit contract. It submits that the bracketed alternatives, “(whether the person does so as the credit provider or on behalf of the credit provider)” are not merely non-exhaustive illustrations. It submits that they should not be read as though the bracketed text included the additional words “or otherwise”.
61 I do not accept the first construction advanced by ASIC.
62 As submitted by Cigno, the words in the brackets in item 1(c) of s 6(1) of the Act are not merely non-exhaustive illustrations. Rather, the use of the definite article preceding the two references to “credit provider” makes clear that the person performing the obligations or exercising the rights of a credit provider in relation to a credit contract is either the person who does so as the credit provider or on behalf of the credit provider. Textually, the rights or obligations being exercised must be the rights or obligations of the credit provider under a credit contract entered into by the credit provider. It cannot be construed as rights or obligations of a credit provider at large or rights or obligations that a credit provider might be able to exercise in relation to a credit contract.
63 The use of the indefinite article in the text preceding the words in brackets in item 1(c) is consistent with the text in item 1(a) and grammatically necessary because the relevant credit provider and credit contract need to be introduced by the indefinite article before the definite article can be used.
B.3.2. ASIC’s second construction
64 Cigno submits that ASIC’s approach is flawed because ASIC does not identify in a principled or specific manner the particular rights of BHFS said to have been exercised by Cigno.
65 Cigno submits that the Cigno Related Services did not involve the exercise of rights of BHFS and should instead be viewed as:
(a) the performance by Cigno of its obligations to Ms Morrow under the Morrow Services Agreement; or
(b) the exercise of Cigno’s rights under the Morrow Services Agreement.
66 It submits that to the extent that the Cigno Related Services involved the exercise of rights, they were (to apply the reasoning of O’Bryan J at FCJ [214]), the rights of Cigno not the rights of BHFS.
67 Cigno submits that this proposition is also reflected in the following findings in the Primary Judgment, which were not disturbed on appeal:
127 On balance, I accept that at all relevant times Cigno was acting as the agent of Ms Morrow or on its own behalf.
...
130 …The matters relied upon by ASIC, however, were all services provided by Cigno pursuant to express entitlements and obligations in the Morrow Services Agreement.
…
132 In the course of oral submissions, ASIC placed particular emphasis on a default notice that appeared on its face to be on joint Cigno/BHFS letterhead. As senior counsel for BHFS observed at the conclusion of the hearing, however, the entitlement of Cigno to issue default notices is provided in the Morrow Services Agreement…
(Emphasis added by Cigno.)
68 Further, Cigno submits that ASIC’s submissions proceed upon an impermissibly vague notion of rights. It submits that ASIC’s characterisation travels beyond rights sourced in the contract or proposed contract, the general law, or statute, so as to encompass an ability to do anything which may be done “towards effectuating the parties’ contractual rights and obligations”.
69 Cigno submits that the references to rights and obligations in item 1(c) of s 6(1) must be read as references to rights and obligations in relation to a contract or proposed contract. It submits that the rights must be capable of being exercised by or on behalf of a credit provider. In this context, it submits that the preferable construction is that to be a right it must be sourced in the contract or proposed contract, the general law, or statute. Further, it submits that it is erroneous to define a right as an ability to do something “towards effectuating” a right because the right is the right.
70 Against this background, Cigno submits that the provision of the Cigno Related Services are not characterised properly as the exercise of any right of BHFS for the following reasons.
71 First, Cigno submits that ASIC does not point to any right of BHFS to maintain accounts and records, whether sourced in the credit contract, the general law, or statute. It submits that while it might be theoretically open to BHFS to maintain accounts and records, if it were to choose to do so, it would be doing this for its own purposes and in its own interests, rather than in the exercise of a right it holds as against Ms Morrow. Cigno submits that this is an obligation it owed to Ms Morrow under the Morrow Services Agreement, rather than a right of BHFS as against Ms Morrow.
72 Second, Cigno submits that ASIC again does not point to any right of BHFS to collect payments by arranging direct debits, whether sourced in the credit contract, the general law, or statute. It submits that the collection of payments was part of the Cigno Related Services provided by Cigno under the Morrow Services Agreement, namely facilitating the making of payments to the lender. In addition, Cigno submits that it facilitated satisfaction of its right to be paid amounts owing to it under the Morrow Services Agreement.
73 Third, as to the giving of notices of demand, Cigno submits that it may be accepted that a lender has a right to demand repayment in accordance with the terms of the credit contract subject to any statutory constraints. However, on the findings at first instance which were not disturbed on appeal, the notices were given by Cigno pursuant to its own entitlement under the Morrow Services Agreement: at J [132], and in performance of Cigno’s obligation to Ms Morrow under the Morrow Services Agreement “to make all reasonable attempts to inform you of [a] Default Event”: at J [133].
74 I have concluded that the second construction advanced by ASIC is correct and that ASIC has established that Cigno exercised rights of BHFS in relation to a credit contract, namely the Morrow Loan Agreement, for the purposes of item 1(c) by performing the Cigno Related Services in the period between 18 October 2019 and 20 April 2020. I have reached those conclusions for the following reasons.
75 First, item 1(c) is relevantly directed at a person performing obligations and exercising rights of a credit provider, on its behalf, in relation to a credit contract of the credit provider. The obligations performed and the rights exercised are not limited to obligations and rights in the credit contract. Nor does item 1(c) provide that the person performing the obligations and exercising the rights, on behalf of the credit provider, is doing so under or pursuant to the provisions of the credit contract.
76 It is no answer to ASIC’s primary submission that Cigno, in providing the Cigno Related Services, was performing obligations and exercising rights under the Morrow Services Agreement. The relevant nexus is whether the obligations performed or the rights exercised by Cigno were obligations and rights of BHFS in relation to the Morrow Loan Agreement. Item 1(c) is agnostic as to the specific agreement under which the person exercising the rights or performing the obligations of the credit provider in relation to a credit contract may have acted.
77 As submitted by ASIC, any construction of item 1(c) that the collection of money under both a loan agreement and a services agreement could not constitute an exercise of a credit provider’s rights would be a formalistic interpretation. Such an interpretation would permit item 1(c) to be impermissibly avoided through contractual structuring outside the remedial framework established by the Code, in a similar manner to Cigno’s interpretation of s 6(5) of the Code which was rejected by the Full Court: at FCJ [171]-[172].
78 Second, the rights described in item 1(c) are not limited to contractual rights held by a credit provider. The word right is not defined in the Act. It should be given its natural and ordinary meaning. The Macquarie Dictionary Online relevantly defines a right as “a just claim or title, whether legal, prescriptive, or moral” and “that which is due to anyone by just claim”. A right for the purposes of item 1(c) is not limited to contractual rights. It would extend to an entitlement that expressly or impliedly arises from, or is necessary to give effect to, a contractual right. For example, where the contract obliges the borrower to make a repayment to the credit provider, the credit provider has a right to demand that repayment from the borrower or to require the repayment to be made in a particular way.
79 Construing the “rights of a credit provider” broadly is supported by the Consolidated EM. It is stated in the Consolidated EM at [2.35] that persons falling within the definition in, relevantly, item 1(c), would include “mortgage managers where they are managing the credit contract on behalf of the credit provider”. Activities directed towards effectuating the parties’ contractual rights and obligations under a loan agreement, including contract management activities, can amount to an exercise of rights. In contrast, the different language of amounts “under the contract” or “under the guarantee”, used in sections such as s 92(b)-(d) of the Act, describe amounts owed under a contract or guarantee.
80 Further, rights within item 1(c) would include choses in action at common law, such as the right to receive payment under a contract and the right to sue to recover a debt. In Australian Securities and Investments Commission v Rent 2 Own Cars Australia Pty Ltd (No 2) [2022] FCA 491 at [41], Greenwood J accepted that the right to receive weekly payments under a contract was a right of a credit provider for the purposes of item 1(c). In the context of a joint commercial enterprise, services provided by a party pursuant to a contract with a third party may also relate to the exercise of rights and performance of the obligations of another party to the enterprise.
B.3.3. Capacity in which rights were exercised
81 I turn now to consider whether Cigno exercised the rights “on behalf of” BHFS.
82 ASIC submits that the particular capacity in which Cigno undertook the Cigno Related Services is irrelevant. For the purposes of satisfying item 1(c) in s 6(1) of the Act, ASIC submits it is not necessary to establish that Cigno was the agent of BHFS. It submits that the Cigno Related Services concern rights of a character that are enjoyed by a credit provider in relation to a credit contract (here, the Morrow Loan Agreement) – and that can be determined without addressing the legal or equitable capacity in which Cigno exercised those rights.
83 Cigno submits that ASIC does not identify in a principled manner how Cigno is said to have exercised those rights of BHFS “on behalf of” BHFS.
84 In my view, a person may exercise the rights of a credit provider within item 1(c) whether or not the person is acting as an agent of the credit provider. The expression “on behalf of the credit provider” is broader than common law agency. The expression is not defined in the Act. The Macquarie Dictionary Online, relevantly, defines on behalf of to be “in someone’s interest; in aid of someone”. It directs attention to the purpose for which the act of a person may be directed rather than the specific basis upon which the person may have acted. It would encompass an exercise of rights of a credit provider in relation to another person pursuant to a joint commercial enterprise.
85 Relatedly, my findings at first instance, and not disturbed on appeal, that (a) Cigno was acting as the agent of Ms Morrow or on its own behalf: at J [127], (b) the services provided by Cigno were provided pursuant to express entitlements and obligations in the Morrow Services Agreement: at J [130], and (c) the entitlement to issue default notices is provided for in the Morrow Services Agreement: at J [132], do not prelude a finding that Cigno was acting on behalf of BHFS in providing the Cigno Related Services. As O’Bryan J explained at FCJ [214]:
[W]hile rights may be exercised on behalf of another by an agent, rights may also be exercised on behalf of another by a range of powers and authorities which do not necessarily involve the creation of an agency relationship.
86 For the foregoing reasons, I am satisfied that Cigno contravened s 29(1) of the Act, by engaging in credit activity within the meaning of item 1(c) in s 6(1) of the Act, by exercising the rights of a credit provider “on behalf of” BHFS, in relation to the Morrow Loan Agreement.
87 The statutory provisions and principles relevant to the grant of declarations and injunctive relief are well settled and were not materially in dispute.
88 Pursuant to s 166(1) of the Act, within 6 years of a person contravening a civil penalty provision, ASIC may apply to the Court for a declaration that the person contravened the provision.
89 Section 166(2) of the Act provides that if the Court is satisfied that a person has contravened a civil penalty provision, the Court “must make” a declaration to that effect. It is “mandatory” for the Court to make a declaration of contravention if it is satisfied that there has been a contravention of s 29 of the Act: Australian Securities and Investments Commission v Financial Circle Pty Ltd [2018] FCA 1644 at [154] (O’Callaghan J).
90 The permissible scope and content of a declaration under s 166(1) is provided for in s 166(3) of the Act. Section 166(3) requires that the declaration specify (a) the court that made the declaration, (b) the civil penalty provision that was contravened, (c) the person who contravened the provision, and (d) the conduct that constituted the contravention.
91 The declaration must specify the conduct that constitutes the contravention with sufficient particularity to enable the declaration to stand on its own: see Australian Securities and Investments Commission v Warrenmang Ltd [2007] FCA 973 at [32] (Gordon J), referring to similarly worded provisions under s 1317(1) and s 1317E(2)(a)-(d) of the Corporations Act 2001 (Cth) (Corporations Act).
92 The declaration must also be sufficiently time specific, and must accurately describe the conduct that gave rise to the contravention of the Act: see Australian Securities and Investments Commission v Thorn Australia Pty Ltd [2018] FCA 704 (Jagot J); see also Warrenmang at [48] (Gordon J).
93 The declaration should be informative as to the basis on which the Court declares that a contravention has occurred, and should contain appropriate and adequate particulars of how and why the conduct is a contravention of the Act: see Australian Securities and Investments Commission v Westpac Banking Corporation [2019] FCA 2147 at [239]-[240] (Wigney J); see also BMW Australia Ltd v Australian Competition and Consumer Commission [2004] FCAFC 167 at [35] (Gray, Goldberg and Weinberg JJ) citing Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53; [2003] HCA 75 at [90] (Gummow, Hayne and Heydon JJ).
94 The declaration should avoid using defined terms which are effectively meaningless to anyone who does not have access to the agreed facts: Westpac at [244].
95 Section 177(1)(a) of the Act provides that the Court may grant an injunction, if it is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute a contravention of the Act.
96 Section 177, however, contains express modifications to the generally applicable requirements affecting the exercise of the Court’s discretion to grant an injunction. Section 177 is remedial in that it is designed to minimise the risk of further damage to members of the public. It is not limited by considerations relevant to the grant of injunctive relief in equity: Australian Securities and Investments Commission v Cassimatis (No 9) [2018] FCA 385 at [118] (Dowsett J).
97 The underlying legislative policy is also reflected in the wording of s 177(5)(a) of the Act which provides that the Court has power to grant an injunction whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind. Moreover, s 177(5)(c) provides that an injunction may be granted whether or not there is an imminent danger of substantial damage to another person if the person engages in conduct of that kind.
98 The grant of a “public interest injunction” of the kind contemplated by s 177, reflects the premise that where a contravention has occurred, an injunction will serve a purpose of deterrence: ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 256 (Lockhart J, with French J, as his Honour then was, agreeing at 268), in relation to s 80(2), s 80(4) and s 80(5) of the Trade Practices Act 1974 (Cth); see also Australian Securities and Investments Commission v McDougall [2006] FCA 427 at [70]-[72] (Young J) in relation to s 1324 of the Corporations Act.
99 In a particular case, there may be evidence as to the scale of contravention by the respondent beyond the declaration made and as to the likelihood of future contraventions by the respondent. It is not necessary, however, to establish that an injunction will ensure deterrence, because the policy underlying s 177(5)(a) is that by granting the injunction “deterrence is effected by attaching to the repetition of the contravention the range of sanctions available for contempt of court”: ICI Australia at 268 (French J, as his Honour then was); see also BMW Australia at [39] (Gray, Goldberg and Weinberg JJ).
100 The contravention and the declaration of contravention enliven the power to grant the injunction: Australian Securities and Investments Commission v Secure Investments Pty Ltd (No 2) [2020] FCA 1463 at [73] (Derrington J).
101 In the context of the power to grant an injunction under s 1324(1)(a) of the Corporations Act, which is in similar terms to s 177(1) of the Act, it has been said that “[i]n circumstances where a contravention has been identified, it is appropriate for the Court to restrain the defendants from committing future contraventions of a similar kind”: Australian Securities and Investments Commission v Marco (No 6) [2020] FCA 1781 at [122] per (McKerracher J), where s 1324(6)(a) and s 1324(6)(c) of the Corporations Act are in similar terms to s 177(5)(a) and 177(5)(c) of the Act, respectively. These authorities apply in relation to the exercise of the power in s 177(1)(a) of the Act.
102 In Australian Securities and Investments Commission v ACN 092 879 733 Pty Ltd, [2012] FCA 923 at [36]-[37], Nicholas J made a declaration under s 166 that the respondent company contravened s 30(2) of the Act (by holding out that it engaged in the business of providing home loans in circumstances where it was not authorised to do so) and granted an injunction restraining the company from engaging in any further holding out of that kind. The grant of the injunction followed from the making of the declaration, with no further justification required, so that the injunction operated to restrain the contravening conduct the subject of the declaration. In observing that “the conduct giving rise to the relevant contravention appears to have ceased”, Nicholas J made it plain that cessation of the contravening conduct does not stand in the way of an exercise of the discretion to grant the injunction: at [37].
103 ASIC seeks declarations in respect of BHFS’s contraventions of s 29(1) of the Act, within the meaning of item 1(a) of s 6 of the Act (credit provider contravention) and within the meaning of item 1(b) of s 6 of the Act (carrying on a business contravention). The declarations are in the form of the revised declarations annexed to ASIC’s reply submissions served after the remittal hearing.
104 BHFS advances alternative formulations of the declarations in relation to these contraventions in the annexure to its submissions in response to ASIC’s reply submissions.
D.1.2. Credit provider contravention declaration
105 The final form of the declaration that ASIC seeks pursuant to s 166 of the Act with respect to the credit provider contravention is in the following terms:
…from 18 October 2019 until 14 April 2020, BHF Solutions Pty Ltd (BHFS) contravened s 29(1) of the NCCP Act by engaging in a credit activity without holding an Australian Credit Licence (ACL) authorising BHFS to engage in that activity, being the activity of being “a credit provider under a credit contract” as specified in item 1(a) of s 6 of the NCCP Act, in that:
(a) on 1 July 2019, BHFS entered into a loan management facilitation agreement with Cigno Pty Ltd (Cigno), subsequently amended from 12 September 2019 (BHFS/Cigno Agreement), under which Cigno was to manage loan agreements BHFS entered into with borrowers, in accordance with the conditions of the BHFS/Cigno Agreement, which included that Cigno was able to charge the borrower fees at Cigno’s discretion;
(b) on 18 October 2019:
(i) BHFS entered into a continuing credit contract with Ms Leah Morrow (Ms Morrow) under which BHFS was, and remained until 14 April 2020, a credit provider; and
(ii) Cigno entered into a services agreement with Ms Morrow under which Ms Morrow was charged, amongst other fees, a financial supply fee calculated as a base amount of $13 plus 60% of the loan amount (Financial Supply Fee); and
(c) the Financial Supply Fee was a “charge that is or may be made for providing the credit” within the meaning of s 6(5) of the National Credit Code (Code) in Schedule 1 of the NCCP Act, that credit being credit provided by BHFS.
106 BHFS opposes the credit provider contravention declaration that ASIC seeks, on the following grounds.
107 First, BHFS submits that ASIC had only sought a declaration in its written submissions on the remittal that the credit provider contravention had occurred “on or about 18 October 2019”. It was, therefore, “entirely unsatisfactory” in ASIC’s written reply, after the oral remittal hearing, for ASIC to seek a declaration from “18 October 2019 until 14 April 2020”. It submits that in the absence of any explanation for the change of position or indeed any reference to the change, it should not be accepted. It again notes, in this context, that the declaration becomes conclusive evidence of the matters to which it refers in accordance with the terms of s 166(4) of the Act.
108 Second, BHFS submits that ASIC now also impermissibly seeks to incorporate Recital F of the agreement dated 1 July 2019, as amended from 12 September 2019, between BHFS and Cigno, entitled “Loan Management Facilitation Agreement” (BHFS/Cigno Agreement), in the first declaration. It submits that this recital received only a passing reference in the decision of the Full Court at FCJ [32.b], and was not referred to in my Primary Judgment. Having started from the position of drafting the declaration in generic terms that simply restated the legislation, it submits that ASIC now seeks to include extraneous material that was in no way an essential step in the Full Court’s analysis. BHFS submits that this “last minute” amendment to the first declaration is addressed in the briefest of terms in ASIC’s written reply and without any reference to the analysis of the Full Court.
109 Third, BHFS submits that a declaration with respect to the credit provider contravention in the following terms strikes an appropriate balance between previous formulations advanced by ASIC that might be thought too general and by BHFS that might be thought too specific:
The Court declares, pursuant to s 166 of the NCCP Act, that on 18 October 2019, BHF Solutions Pty Ltd (BHFS) contravened s 29(1) of the NCCP Act by engaging in a credit activity without holding an Australian Credit Licence (ACL) authorising BHFS to engage in that activity, being the activity of being “a credit provider under a credit contract” as specified in item 1(a) of s 6 of the National Consumer Credit Protection Act 2009 (Cth) (NCCP Act), in that:
a. on 1 July 2019, BHFS entered into a Loan Management Facilitation Agreement with Cigno Pty Ltd (Cigno), which was subsequently amended after 12 September 2019;
b. on 18 October 2019, BHFS entered into a credit contract with Leah Morrow under which BHFS was a credit provider;
c. on 18 October 2019, Cigno entered into a services agreement with Leah Morrow; under which, among other fees, Cigno charged Ms Morrow a Financial Supply Fee that was calculated as a base amount of $13 plus 60% of the loan amount;
e. the Financial Supply Fee charged by Cigno was a “charge that is or may be made for providing the credit” within the meaning of s 6(5) of the National Credit Code (Code) in Schedule 1 of the NCCP Act, that credit being credit provided by BHFS.
(Text marked as deleted text, including (d), not included.)
110 I am satisfied that a declaration in the form of the credit provider contravention declaration sought by ASIC should be made.
111 First, I am satisfied that the date range in the credit provider contravention declaration proposed by ASIC accurately reflects the liability findings made against BHFS. While consistency in the formulation of proposed declarations of contravention is desirable, the overriding objective is that the declarations are framed in a manner that is consistent with the contraventions found by the Court.
112 Second, ASIC submits, and I accept, that the inclusion of the text taken from Recital F to the BHFS/Cigno Agreement, as amended, provides an appropriate link between ASIC’s proposed paragraphs (a) and (c) with the core description of the conduct of BHFS included in paragraph (b)(i).
113 Third, the inclusion of paragraphs (c) and (e) in BHFS’s proposed credit provider contravention declaration are inappropriate because they purport to describe or otherwise direct attention at the conduct of Cigno, not BHFS. The text of the BHFS proposed declaration, other than the date range, is otherwise not materially different to the ASIC proposed credit provider contravention declaration.
D.1.3. Carrying on a business contravention declaration
114 The final form of the declaration that ASIC seeks pursuant to s 166 of the Act with respect to the carrying on a business contravention declaration is in the following terms:
…from 18 October 2019 until14 April 2020, BHFS contravened s 29(1) of the NCCP Act by engaging in a credit activity without holding an ACL authorising BHFS to engage in that activity, being the activity of “carr[ying] on a business of providing credit being credit the provision of which the Code applies to” as specified in item 1(b) of s 6 of NCCP Act, in that:
(a) on 1 July 2019, BHFS entered into the BHFS/Cigno Agreement with Cigno under which Cigno was to manage loan agreements BHFS entered into with borrowers, in accordance with the conditions of the BHFS/Cigno Agreement, which included that Cigno was able to charge the borrower fees at Cigno’s discretion;
(b) between on 18 October 2019 and 14 April 2020, pursuant to the BHFS/Cigno Agreement, BHFS entered into continuing credit contracts with clients of Cigno in circumstances where those clients also entered into services agreements with Cigno pursuant to which they were charged, amongst other fees, the Financial Supply Fee; and
(c) the Financial Supply Fee was a “charge that is or may be made for providing the credit” within the meaning of s 6(5) of the Code in Schedule 1 of the NCCP Act, that credit being credit provided by BHFS.
115 BHFS submits that facts that ASIC cited in their written submissions at [43] and [44] do not go far enough to establish a “carries on a business” contravention. It submits that the entirety of the conduct necessary to establish the contravention has not been proven on the findings made to date.
116 BHFS submits the factual findings that might support any “carries on a business contravention” are limited to:
(a) the finding in my primary judgment at [82] that:
the evidence establishes that at least BHFS was carrying on a business of providing credit”
(b) the observation by O’Bryan J in the Full Court judgment at FCJ [103] that:
[o]n this appeal, there is no dispute that the loans provided to consumers by BHFS as part of its lending arrangements with Cigno satisfied the elements of s 5(1) [of the Code]. The loans were provided to natural persons, the loans were for personal, domestic or household purposes, BHFS charged a fee for providing the loan and BHFS provided the loans in the course of a business of doing so.
117 BHFS submits that:
Beyond this limited factual footing, however, there is little more that can be said for there being a basis for the making of a declaration with respect to a contravention by BHFS of s 29(1) of the NCCP Act in carrying on a business of providing credit. This can be demonstrated by recasting the proposed declaration and attempting to include the requisite degree of specificity based on the findings made in this proceeding to date:
The Court declares, pursuant to s 166 of the NCCP Act, that from 18 October 2019 to 11 January 2020 BHFS contravened s 29(1) of the NCCP Act by carrying on a business of providing credit, being credit the provision of which the Code in Schedule 1 of the NCCP Act applies to, without holding an ACL authorising BHFS to engage in that activity in that:
a. from 18 October 2019 to 11 January 2020, BHFS provided loans to consumers who were natural persons for personal, domestic or household purposes in the course of a business of doing so;
b. during that period, all individual borrowers who obtained loans from BHFS did so through Cigno.
118 BHFS submits that the conduct, as specified in (a) and (b) above, is insufficient to make out a contravention of “carrying on” a business in breach of the requirements of the Code, and therefore, it is insufficient to warrant the making of a declaration pursuant to s 166 of the Act. It submits that (a) a declaration in the terms identified above would have the conclusive effect described and form the basis upon which civil penalty proceedings could be brought, and (b) there are no agreed facts or factual findings that ASIC can point to in order to demonstrate that Cigno had a standard form of services agreement throughout the period for which declaratory relief is sought.
119 BHFS submits that critically, there is also no finding as to the basis upon which the Financial Supply Fee was calculated by Cigno throughout the period with respect to individuals beyond Ms Morrow. It submits that the SOAF was (a) relevantly cast in terms confined to the calculation of “Ms Morrow's Financial Supply Fee” and her “repayment schedule”, and (b) it should not be distorted to now found the basis for a declaration in respect of an allegation that was given limited attention at trial and on appeal, and that was not the focus of the evidence led by ASIC in the absence of any further findings.
120 BHFS further submits, that even putting these matters to one side, it is clear that ASIC should be kept to the period that it has pleaded in the ASOC. ASIC had pleaded that this contravention related to the period between 18 October 2019 to 11 January 2020, when BHFS entered into a loan agreement with Ms Morrow and in respect of two related drawdowns. It submits that ASIC has provided no explanation of why it now seeks a declaration for the different period of 14 September 2019 to 14 April 2020.
121 BHFS submits that a further danger in making a declaration in the terms sought by ASIC with respect to the “carrying on of a business” contravention is that it is unclear whether one or more contraventions is entailed in the language of the declaration proposed by ASIC. “Credit activity” encompasses the composite activity of “carrying on of a business of providing credit” in item 1(b) of s 6(1) of the Act, and it is that “credit activity” that is the subject of the prohibition in s 29(1) of the Act. That is, the declaration that ASIC seeks must only be in respect of a single contravention of carrying on of a business of providing credit. However, none of this is exposed in ASIC’s submissions on the remittal, nor on the face of the second declaration that it seeks. BHFS, nor the public at large, should not be left guessing as to these fundamental matters.
122 Alternatively, BHFS submits that any “carrying on a business” declaration should be confined to the lending to Ms Morrow, consistently with the manner in which ASIC put its case at first instance.
123 I am satisfied that a declaration with respect to the carrying on a business contravention should be made but not in the form sought by ASIC.
124 First, there was no appeal from the finding in my Primary Judgment at [82] that BHFS was carrying on a business of providing credit. ASIC pleaded in the ASOC at [112]:
BHFS engaged in a credit activity of carrying on a business of providing credit, being credit the provision of which the Code applies to, without holding an Australian Credit Licence authorising it to engage in that credit activity, when it provided the Morrow Loan, the First Morrow Drawdown and the Second Morrow Drawdown to Ms Morrow, respectively on or around 18 October 2019, on or around 2 December 2019 and on or around 11 January 2020.
125 As I stated in the primary judgment at J [85], an isolated activity, with the intention of it being repeated is sufficient to establish the carrying on of a business: see Williams v ATM & CPA Projects Pty Limited [2015] NSWSC 703 at [70] (Ball J). It was by reference to that principle that I was satisfied that BHFS had relevantly carried on a business of providing credit by providing the Morrow Loan, the First Further Morrow Drawdown and the Second Further Morrow Drawdown.
126 Second, the reliance by ASIC on the following finding by O’Bryan J at FCJ [211] to support its proposed declaration is misconceived:
Further, there was no appeal against the trial judge’s finding that BHFS was carrying on a business of providing credit at (J [82]) and it follows that BHFS carried on a business of providing credit, being credit the provision of which the Code applied to, within the meaning of item 1(b) of s 6(1).
127 The finding is expressed in terms that make it clear that it was made in the context of, and does not seek to go beyond, my finding at J [82].
128 Third, more generic allegations of engaging in a credit activity of carrying on a business of providing credit to which the provisions of the Code applied were advanced in the ASOC at [112] and [115]. Critically, however, the credit activity alleged to have contravened s 29(1) of the Act was limited to the loans and drawdowns made to Ms Morrow alleged in the ASOC at [112] as made clear in the ASOC which alleged:
113 By reason of [112], BHFS contravened s 29(1) of the NCCP Act.
114 By reason of [113], the Court should make a declaration that BHFS contravened s 29(1) of the NCCP Act by carrying on a business of providing credit, being credit the provision of which the Code applies to, from on or around 18 October 2019 until on or around 11 January 2020, without holding an Australian Credit Licence authorising it to engage in that activity.
129 The last debit of a repayment from Ms Morrow’s bank account might have been made on 14 April 2020, but that was not the basis on which ASIC took this matter to trial. In proceedings involving contraventions of civil penalty provisions, a defendant is entitled to proceed on the basis that a regulator will be held to its pleadings.
130 The allegation in the ASOC at [115] that BHFS was “continuing to engage in a credit activity of carrying on a business of providing credit being credit the provision of which the Code applies to” was pleaded in support of the grant of an injunction, not a contravention of s 29(1) of the Act. Although the particulars to that paragraph referred to customer numbers of 5,000 per week entering into loan agreements since September 2019, those particulars were not provided in support of any of the alleged contraventions of civil penalty provisions.
131 Fourth, as submitted by BHFS, I am satisfied that the proceedings were conducted, at all times, up to the conclusion of the liability hearing, by reference to the allegations in the pleadings. On 3 November 2020, Perram J stated during a case management hearing for the matter:
Now, can I telegraph to the parties what I intend for this matter, which is that the pleadings should probably form – serve two purposes. One is the articulation of ASIC’s case and the articulation of the defendant’s of the respondent’s case. So I’d like these pleadings to bring out what the actual legal arguments are. Secondly, I’d like it to form – and we can discuss this on the last – at the next case management hearing to form the basis, hopefully, of some kind of agreed version of what the facts are, maybe agreed documents because if we can get that done then it could be tried very rapidly.
132 It was in that context, that ASIC made a decision to advance allegations with respect to only one consumer and to include in the Statement of Claim and subsequently the ASOC, the allegations in [112]-[114]. It is to be noted that in ASIC’s concise statement it had included allegations with respect to three consumers.
133 BHFS submits that ASIC’s attempts to resist being held to its pleaded case by contending that the findings made travelled beyond the lending to Ms Morrow should be rejected. In opposing these contentions by ASIC, BHFS also relies upon correspondence it sent to ASIC on 26 March 2021, 13 April 2021 and 21 April 2021 in which BHFS referred to ASIC’s case as a “test case”. BHFS submits that ASIC remained silent as to the characterisation of its case as a “test case”.
134 I accept, as submitted by BHFS, that it was incumbent in the above context, for ASIC, as a regulator, to correct any misunderstanding that BHFS might have expressed in correspondence with ASIC.
135 ASIC seeks injunctions pursuant to s 177(1)(a) of the Act against BHFS in the following terms:
3. Pursuant to s 177(1) of the Act, the Court orders that, in respect of loan agreements between BHFS and consumers entered into in accordance with the BHFS/Cigno Agreement before the date of this order, BHFS be permanently restrained, whether by its servants, agents or employees, from being a “credit provider under a credit contract” or “carrying on a business of providing credit, being credit the provision of which the [Code] applies to” (as each of these “credit activities” is defined in section 6(1) of the NCCP Act) including by:
(a) providing a line of credit to consumers;
(b) providing advances of funds to consumers; and
(c) collecting and receiving monies corresponding to repayments for amounts advanced by and/or fees charged by BHFS.
4. Pursuant to s 177(1) of the Act, the Court orders that BHFS be restrained, whether by its servants, agents or employees, for so long as it does not hold an ACL under s 35 of the Act authorising it to engage in the credit activities, from:
(a) being a “credit provider under a credit contract” and “carrying on a business of providing credit, being credit the provision of which the [Code] applies to” (as each of these “credit activities” is defined in s 6(1) of the NCCP Act) (Credit Activities) by lending in accordance with the BHFS/Cigno Agreement; and
(b) entering into any agreement on the same terms as the BHFS/Cigno Agreement with any person to engage in the Credit Activities.
136 The first injunction sought by ASIC is directed at restraining BHFS from engaging in any conduct in respect of existing loan agreements that it has entered into with consumers in accordance with the BHFS/Cigno Agreement (First BHFS Injunction).
137 The second injunction sought by ASIC is directed at restraining BHFS from making any loans in accordance with the BHFS/Cigno Agreement or entering into any agreement with a consumer on the same terms as the BHFS/Cigno Agreement (Second BHFS Injunction).
138 BHFS submits that the injunction sought by ASIC in this case is not appropriate in the sense required by s 177(1) of the Act, for the following reasons.
139 First, BHFS submits that its proffer of an appropriate undertaking cannot be said to be an afterthought. It submits that it first raised the prospect of providing an undertaking as early as March 2021, it again offered an undertaking in mid-April 2021 and again on 21 April 2021. On each occasion, ASIC failed to respond or rejected the undertakings without seeking to engage in any alterative formulations.
140 Second, BHFS submits that the grant of a declaration of contravention can sufficiently express the Court’s disapproval of particular contravening conduct and a restatement of the law by the Court in a form of an injunction “does little to add to this”.
141 Third, BHFS submits that this was not a case where the law was clear and it sought deliberately to contravene it. Rather, BHFS submits that it was reasonably arguable that its conduct was lawful without an ACL and that its belief to that effect was reasonably held, particularly in the context of the Court’s decision in Australian Securities Investments Commission v Teleloans Pty Ltd (2015) 234 FCR 261; [2015] FCA 648 (Logan J).
142 I am satisfied that an injunction largely in the form advanced by ASIC should be made for the following reasons.
143 First, the Full Court has found that BHFS contravened the Act and the Code. In order for the injunction to issue, ASIC need not prove that BHFS is proposing to engage in further conduct constituting a contravention.
144 Second, I am satisfied that the injunctions sought by ASIC are expressed in clear and succinct terms and are directed at (a) restraining the contravening conduct of BHFS the subject of the proposed credit provider contravention declaration and the carrying on of a business contravention, and (b) from committing future contraventions of a similar kind. Both of the proposed injunctions restrain conduct, under or, otherwise in connection with, the BHFS/Cigno Agreement. They bear a direct relationship and nexus with the conduct the subject of the proposed declarations.
145 Third, a significant purpose of the grant of an injunction is to deter any repetition of the conduct by either the contravener or other entities. In my view, the acceptance of an undertaking to the Court in the same terms as an injunction is likely less likely to achieve effective deterrence. The Court’s inherent power to accept an undertaking does not carry with it any implication that accepting an undertaking is an appropriate alternative to the exercise of a statutory power to grant an injunction to achieve enforcement in a regulatory scheme.
146 Fourth, I am satisfied that an injunction would appropriately record the Court’s disapproval of the contravening conduct. There may well have been an arguable case that the lending model fell outside the relevant protective provisions in the Act and the Code. It is, however, readily apparent that the objective purpose of the lending model established by BHFS and Cigno was to avoid the provisions of the Act and Code providing for the protection of consumers from disproportionate fees and charges. Given the findings of the Full Court, however, the lending model has been found to be ineffective in seeking to avoid those protective provisions. The conduct of BHFS was not inadvertent or otherwise pursued for purposes that promoted the consumer protective objectives of the Act and the Code.
147 Fifth, and relatedly, the delay in the proffering of the undertakings by BHFS tells against the Court’s acceptance of the undertakings as an appropriate means of achieving deterrence and signifying its disapproval of the contravening conduct. The undertakings that BHFS proffered to ASIC in May 2021 were expressed to be conditional on (a) the Court having made declarations, and (b) limited to BHFS only being restrained from entering new credit contacts and remaining free to continue to engage in the credit activity of collecting repayments, without holding an ACL. Further, notwithstanding the Full Court’s decision that BHFS’s contraventions were established, it was not until its final submissions that BHFS extended the proffered undertaking to include a restraint upon its collection of repayments on existing loan agreements, whether as a credit provider under a credit contract or by carrying on a business of providing credit.
148 Had the undertakings in the form of those proposed by BHFS in its final submissions been offered in unqualified terms upon or shortly after the commencement of proceedings, the Court’s willingness to accept them in lieu of injunctive relief may well have been different.
149 For the foregoing reasons, an injunction, largely in the form sought by ASIC should be made.
150 ASIC seeks two declarations pursuant to s 166 of the Act that Cigno contravened s 29(1) of the Act by engaging in credit activities without holding an ACL authorising Cigno to engage in those activities.
151 The credit activity the subject of the first declaration is “exercis[ing] the rights of a credit provider in relation to a credit contract” (as specified in item 1(c) of s 6(1) of the Act) (Rights Declaration) in that:
(a) on 1 July 2019, BHFS entered into the BHFS/Cigno Agreement with Cigno under which Cigno was to manage loan agreements BHFS entered into with borrowers, in accordance with the conditions of the BHFS/Cigno Agreement, which included that Cigno was able to charge the borrower fees for its services at Cigno’s discretion;
(b) on 18 October 2019:
(i) BHFS entered into a continuing credit contract with Ms Morrow under which BHFS was, and remained until 14 April 2020, a credit provider; and
(ii) Cigno entered into a services agreement with Ms Morrow under which Ms Morrow was charged, amongst other fees, a Financial Supply Fee;
(c) from 18 October 2019 until about 20 April 2020, Cigno exercised BHFS’s rights in relation to the continuing credit contract by:
(i) maintaining accounts and records with respect to Ms Morrow;
(ii) arranging for the collection of payments from Ms Morrow by arranging for her bank account to be directly debited by third party providers and paid to Cigno;
(iii) monitoring Ms Morrow’s repayments, including their due date and arranging for changes to Ms Morrow’s repayment schedule; and
(iv) notifying Ms Morrow on 5 February 2020 and 4 March 2020 that she had defaulted on her repayments and demanding that she remedy those defaults. (“Cigno Services Activities”).
152 In its supplementary written submissions in response to ASIC’s further submissions, Cigno conceded that if the Court accepts ASIC’s Rights Claim case, then it does not object to the form of the Rights Declaration.
153 I am satisfied that the Rights Declaration should be made. It sufficiently identifies the conduct, the subject of the Rights Claim that I have found that ASIC has established.
154 The credit activity the subject of the second declaration sought by ASIC directed at Cigno is providing a “credit service” (as specified in item 2 of s 6(1) of the Act) (Credit Service Declaration) in that:
(a) on 18 October 2019, 28 November 2019, 9 January 2020 and 20 April 2020, Cigno provided credit assistance to Ms Morrow as defined in s 8(a) the Act, by suggesting that she apply for a particular credit contract with a particular credit provider, being BHFS; and
(b) on 18 October 2019, Cigno provided credit assistance to Ms Morrow as defined in s 8(d) the Act, by assisting Ms Morrow to apply for the particular credit contract with BHFS, being the Morrow Credit Contract;
(together, the conduct in (a) and (b) is the “Cigno Credit Assistance Activities”)
(c) on 18 October 2019, 2 December 2019 and 11 January 2020 Cigno acted as an intermediary as defined in s 9(a) of the Act between BHFS and Ms Morrow for the purpose of securing a provision of credit for Ms Morrow under a credit contract with BHFS by:
(i) assessing the information provided by Ms Morrow and recommending Ms Morrow’s loan application or requests for further advance to BHFS;
(ii) sending Ms Morrow the proposed credit contract between Ms Morrow and BHFS and approval emails, after receiving approval from BHFS;
(d) from 18 October 2019 to about 20 April 2020, Cigno acted as an intermediary as defined in s 9(a) of the Act between BHFS and Ms Morrow for the purpose of securing a provision of credit for Ms Morrow under a credit contract by:
(i) providing statements of account to Ms Morrow;
(ii) arranging for the collection of payments from Ms Morrow by arranging for her bank account to be directly debited;
(iii) monitoring Ms Morrow’s repayments, including their due date and arranging for changes to Ms Morrow’s repayment schedule;
(iv) notifying Ms Morrow on 5 February 2020 and 4 March 2020 that she had defaulted on her repayments and demanding that she remedy those defaults; and
(v) otherwise managing the provision of credit by BHFS to Ms Morrow.
(together, the conduct in (c) and (d) is the “Cigno Intermediary Activities”).
155 In its supplementary written submissions in response to ASIC’s further submissions, Cigno conceded that if the Court accepts ASIC’s submissions on the Credit Assistance Claim and the Intermediary Claim, then it does not object to ASIC’s proposed formulation of paragraphs (a) and (d) of the Credit Service Declaration.
156 Given my findings above at [47]-[53] that ASIC has only established the Intermediary Claim with respect to Cigno’s conduct on 18 October 2019, paragraph (c) of the Credit Service Declaration needs to be restricted to 18 October 2019 and paragraph (d) is no longer relevant. Subject to those matters, I am otherwise satisfied that the declarations sought in paragraphs (a) to (c) should be made. The proposed declarations sufficiently identify the conduct the subject of the Credit Assistance Claim and that part of the Intermediary Claim which I have found that ASIC has established.
157 ASIC seeks the grant of two injunctions against Cigno.
158 First, an injunction directed at the provision of services pursuant to the BHFS/Cigno Agreement in the following terms:
7. Pursuant to s 177(1)(a) of the Act, the Court orders, in respect of services agreements Cigno entered into with consumers before the date of this order in accordance with the BHFS/Cigno Agreement, and in respect of the corresponding loan agreements between those consumers and BHFS (“Loan Agreements”), Cigno be permanently restrained, whether by its servants, agents or employees, from:
(a) exercising the rights of a credit provider in relation to a credit contract or proposed credit contract within the meaning of item 1(c) in s 6(1) of the Act, by:
(i) maintaining accounts and records with respect to the consumers;
(ii) arranging for the collection of payments by consumers by arranging for customers’ bank accounts to be directly debited;
(iii) monitoring repayments by consumers including their due date and arranging for changes to their repayment schedules;
(iv) advising consumers when they have defaulted on their repayments and demanding that the customers remedy those defaults;
(v) collecting monies from consumers corresponding to repayments for amounts advanced or fees charged, including by entering contracts or arrangements for third parties to collect those monies; and
(vi) transferring money collected from consumers to BHFS, which money corresponds to repayments of amounts advanced by, and fees charged by, BHFS under Loan Agreements;
(b) providing credit assistance to a consumer as that credit activity is defined in ss 8(a) and 8(d) of the Act, by:
(i) suggesting that consumers apply for a particular credit contract with a particular credit provider, being BHFS; and
(ii) assisting consumers to apply for a particular credit contract with BHFS;
(c) acting as an intermediary as that credit activity is defined in s 9(a) of the Act, by undertaking any of the Cigno Intermediary Activities in respect of a consumer.
(First Cigno Injunction)
159 Second, an injunction directed at the engagement in any credit activities without an ACL in the following terms:
8. Pursuant to s 177(1) of the Act, the Court orders, Cigno be restrained, whether by its servants, agents or employees, for so long as it does not hold an ACL under s 35 of the Act authorising it to engage in these credit activities, from:
(a) exercising the rights of a credit provider in relation to a credit contract or proposed credit contract within the meaning of item 1(c) in s 6(1) of the Act, by:
(i) maintaining accounts and records with respect to a loan entered into by a customer with a credit provider;
(ii) arranging for the collection of payments by consumers in relation to a credit contract by arranging for their bank accounts to be directly debited;
(iii) monitoring repayments by consumers to a credit provider in relation to a credit contract, including their due date and arranging for changes to their repayment schedules;
(iv) advising consumers when they have defaulted on their repayments in relation to a credit contract and demanding that the customers remedy those defaults;
(v) collecting monies from consumers corresponding to repayments for amounts advanced by, and fees charged by, a credit provider; or to fees charged by Cigno for services in relation to a credit contract, including by entering contracts or arrangements for third parties to collect those monies; and
(vi) transferring money collected from consumers to a credit provider, which money corresponds to repayments of amounts advanced by, and fees charged by, the credit provider under a credit contract;
(b) providing credit assistance to a consumer as that credit activity is defined in s 8 of the Act, by:
(i) suggesting that consumers apply for a particular credit contract with a particular credit provider; and
(ii) assisting consumers to apply for a particular credit contract with a credit provider;
(c) acting as an intermediary as that credit activity is defined in s 9(a) of the Act, by undertaking any of the Cigno Intermediary Activities in respect of a consumer;
(d) entering into any agreement on the same terms as the BHFS/Cigno Agreement as amended by the BHFS/Cigno Agreement Amendments) with any person to engage in the Cigno Services Activities, the Cigno Credit Assistance Activities and/or the Cigno Intermediary Activities in respect of a consumer.
(Second Cigno Injunction)
160 The First Cigno Injunction is expressed in equivalent terms to the First BHFS Injunction. It seeks to restrain any conduct by Cigno in respect of any existing loan agreements between BHFS and consumers entered into in accordance with the BHFS/Cigno Agreement.
161 Paragraph (d) of the Second Cigno Injunction seeks to restrain Cigno from entering into any agreement on the same terms as the BHFS/Cigno Agreement without holding an ACL. In that sense, it is similar to the Second BHFS Injunction. Paragraphs (a) to (c) of the Second Cigno Injunction seek to restrain Cigno from engaging in any credit activity for as long as it does not hold an ACL. A restraint in those terms is not sought against BHFS.
162 Cigno opposes the grant of any injunctive relief on the following grounds.
163 First, Cigno submits that the Court should accept the undertakings that it has proffered in lieu of the injunctions sought by ASIC. It submits that there is no reason to suppose that in the face of any finding by the Court that it had engaged in contravening conduct that it would continue to engage in that conduct. It submits, similarly to BHFS, that it reasonably sought to conduct itself consistently with the decision of the Court in Teleloans and was successful on complex questions of law at first instance.
164 Second, Cigno submits that paragraphs (a) to (c) of the Second Cigno Injunction, as sought by ASIC, do no more than enjoin Cigno to comply with the law.
165 For the reasons advanced above at [142] to [148] with respect to the grant of injunctions against BHFS, I am satisfied that injunctions against Cigno, substantially in the form sought by ASIC, should be granted. Again, as with BHFS, the belated proffer of undertakings by Cigno in substantially the same form as the injunctions sought by ASIC, provides little reason not to grant injunctions to mark the Court’s disapproval of the contravening conduct and to achieve effective deterrence in a regulatory scheme.
166 In my view, however, injunctions should only be granted against Cigno substantially in the terms set forth in the First Cigno Injunction and in paragraph (d) of the Second Cigno Injunction.
167 As submitted by Cigno, paragraphs (a) to (c) of the Second Cigno Injunction do no more than require Cigno to comply with the provisions of the Act and the Code. They do not seek to specify any particular impugned conduct of Cigno. In effect, they only serve to add the prospect of contempt to the criminal and civil penalties provided in the Act and in the Code.
168 More fundamentally, paragraphs (a) to (c) of the Second Cigno Injunction are not directed at restraining the conduct the subject of the proposed declarations with respect to the credit assistance claim, the intermediary claim and the rights claim (to the extent that each of those claims have been established). Nor are those paragraphs seeking to restrain Cigno from committing future contraventions of a similar kind. They are not limited to conduct of a similar kind to that engaged in by Cigno with respect to the BHFS/Cigno Agreement, rather they extend to the conduct of any credit activity. In my view, there is an insufficient nexus or relationship between the contravening conduct the subject of the declarations and the restraint sought to be imposed in paragraphs (a) to (c) of the Second Cigno Injunction.
169 Declarations that BHFS and Cigno have contravened s 29(1) of the Act will be made and injunctions, substantially in the form sought by ASIC, will be granted to restrain both BHFS and Cigno from engaging in similar conduct in the future.
170 My preliminary view is that orders should be made that BHFS and Cigno are to pay ASIC’s costs of the proceedings (both at first instance and on remittal) as agreed, or failing agreement, by a Registrar of this Court on a lump sum basis.
171 In the absence of an agreed position as to the form of the order as to costs, I will provide the parties with an opportunity to make short written submissions on costs, together with any affidavit evidence in support of their respective positions. The form of the costs order will then be determined on the papers, unless any party seeks an oral hearing.
I certify that the preceding one hundred and seventy-one (171) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley. |
