FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v BSF Solutions Pty Ltd [2023] FCA 1406

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for interim injunctions is dismissed.

2.    The applicant pay the respondents’ costs of the application for interim injunctions.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

JACKMAN J:

1    This is an application by the Australian Securities and Investments Commission (ASIC) for interim injunctions pursuant to s 177(3) of the National Consumer Credit Protection Act 2009 (Cth) (the Credit Act) against the first respondent (BSF) and the second respondent (Cigno Australia) in the following terms:

(a)    BSF be restrained (whether by its servants, agents or employees) from demanding, receiving or accepting any “Late Payment Fee” from consumers in respect of agreements described as a “No Fee for Credit Loan Agreement” or a “No Upfront Charge Loan Agreement” that were entered into between BSF and consumers from July 2022 to on or about 21 December 2022 pursuant to the business model whereby those consumers also entered into agreements with Cigno Australia described as an “Account Keeping Arrangement”; and

(b)    Cigno Australia be restrained (whether by its servants, agents or employees) from demanding, receiving or accepting any “Account Keeping Fee”, “Default fee” or “Change of Payment Schedule Fee” from consumers in respect of agreements described as an “Account Keeping Agreement” that were entered into between Cigno Australia and consumers from July 2022 to on or about 21 December 2022 pursuant to the business model whereby those consumers also entered into agreements with BSF described as a “No Fee for Credit Loan Agreement” or a “No Upfront Charge Loan Agreement”.

2    That relief is not, however, the interlocutory relief claimed in paragraphs 21 and 22 of the originating application, which would have prevented customers from repaying their loan amounts and who would have thereby incurred default charges and other fees in the event that the respondents are ultimately successful in these proceedings.

3    As Moshinsky J said in Australian Securities and Investments Commission v Financial Circle Pty Ltd [2018] FCA 2; (2018) 353 ALR 137 at [14], the applicable principles are those set out by Palmer J in Australian Securities and Investments Commission v Mauer-Swisse Securities Ltd [2002] NSWSC 741; (2002) 42 ACSR 605 at [36]. Those principles represent a modification to the traditional approach of considering whether the applicant has established a serious question to be tried and whether the balance of convenience favours the grant of an interlocutory injunction. Relevantly for the present case, I accept that ASIC is seeking to protect the public interest and the injunctions sought here would serve a purpose within the contemplation of the Credit Act. Further, consistently with what Palmer J said in Mauer-Swisse, the absence of an undertaking as to damages (in this case because of s 177(7) of the Credit Act) is of little consequence, given that ASIC is seeking to protect the public interest.

4    ASIC relies on affidavits by Mr Fogarty, a partner of DLA Piper Australia (and its exhibits totalling over 3200 pages), and Ms McDougall, a customer of BSF and Cigno Australia. The respondents rely on an affidavit by Ms Moore, a partner of Piper Alderman.

5    The salient facts are sufficiently summarised for present purposes in ASIC’s written submissions at paragraphs 19 to 28 to the following effect. From about July 2022 to 3 October 2023 (Relevant Period), BSF and Cigno Australia implemented the No Upfront Charge Loan Model, whereby Cigno Australia marketed small loans to consumers, processed loan applications and managed repayments, and BSF advanced those loans. The third respondent, Mr Harrison, is the sole director and secretary of BSF, and the fourth respondent, Mr Swanepoel, is the sole director and secretary of Cigno Australia. On 20 July 2022, BSF and Cigno Australia entered into a “Loan Management Facilitation Agreement”, pursuant to which BSF charged Cigno Australia an assessment fee of $19.99 for the assessment and approval of each loan application that BSF received, irrespective of whether the application was approved (cll 1.2 and 3.3).

6    The transactions that are the subject of this proceeding involve consumers entering into two agreements:

(a)    a No Fee for Credit Loan Agreement or a No Upfront Charge Loan Agreement between BSF and the consumer (Loan Agreement); and

(b)    an Account Keeping Agreement between Cigno Australia and the consumer (Services Agreement), of which there were two versions in use during the relevant period.

7    Pursuant to each Loan Agreement between BSF and a consumer:

(a)    BSF promised to provide the loan amount to the consumer, and the consumer agreed to repay it (cl 1.1) (BSF Credit);

(b)    the consumer agreed to pay a late payment fee of $20 each time a payment amount was not paid on or before the payment date (cl 2.2) (Late Payment Fee);

(c)    no interest charges or other fees were payable by the consumer (cl 2.1);

(d)    the consumer was required to repay the BSF Credit in instalments (cll 1.1 and 2.2);

(e)    BSF had a discretion to apply a 50% late payment contact discount if notice of late payment was given the day before payment was due (cl 2.4); and

(f)    any unpaid fees were capitalised and became part of the loan amount as described in the Loan Agreement (cl 2.5).

8    Pursuant to each Services Agreement between Cigno Australia and a consumer:

(a)    Cigno Australia agreed to facilitate all communications between the consumer and BSF concerning the Loan Agreement, to provide management services concerning the consumer’s Cigno Australia account, to process payments owed by the consumer to Cigno Australia and to BSF, and to facilitate all other account keeping services related to the Loan Agreement from the commencement date (cl 1.1);

(b)    the consumer was required to pay:

(i)    an account keeping fee, payable weekly in advance (cll 3.1 to 3.3) (Account Keeping Fee);

(ii)    a default fee of $67, if the consumer defaulted on loan repayments (cl 3.4) (Default Fee); and

(iii)    a change of payment schedule fee of $15, if the consumer requested a change in his or her schedule of loan repayments (cl 3.6) (Change of Payment Schedule Fee); and

(c)    Cigno Australia facilitated collection of all payments in intervals and amounts as set out in the Loan Agreement between the consumer and BSF (cl 5.1).

9    The Account Keeping Fee, payable weekly until the final instalment repayment date under the Loan Agreement (described as the “Initial Period Finalisation Date” in the Services Agreement), was a variable fee calculated by reference to the BSF Credit, the term of the Loan Agreement and the number of instalments required to repay the BSF Credit. Pursuant to the Services Agreement, after the Initial Period Finalisation Date, the Account Keeping Fee reduced to $5.95 per week (cl 3.7).

10    In the Relevant Period, as part of the No Upfront Charge Loan Model, BSF entered into 150,112 Loan Agreements with consumers, and Cigno Australia entered into the same number of Services Agreements with those consumers, including with the consumers referred to in Annexure A to the concise statement. BSF lent a total of $34,709,015.

11    On or about 21 December 2022, BSF and Cigno Australia ceased entering into new agreements under the No Upfront Charge Loan Model. However, both BSF and Cigno Australia continue to charge fees and to receive payments pursuant to the Loan Agreements and the Services Agreements respectively. In this respect, on 28 September 2023:

(a)    Cigno Australia advised ASIC that:

(i)    there were 10,604 consumers that had outstanding amounts payable (although I note that by 18 October 2023, this number had reduced to 6,839, with total outstanding amounts payable of $5,139,573);

(ii)    in the four-week period from 18 August 2023 to 15 September 2023, consumers were charged $912,617, comprising:

(A)    Account Keeping Fees totalling the sum of $265,257 on a total of 44,581 occasions;

(B)    Default Fees totalling the sum of $548,060 on a total of 8,180 occasions; and

(C)    change of payment schedule fees totalling the sum of $99,300 on a total of 6,620 occasions; and

(b)    BSF advised ASIC that:

(i)    it had 10,604 Loan Agreements that had outstanding amounts payable (reduced as at 18 October 2023 as referred to above);

(ii)    in the four-week period from 18 August 2023 to 15 September 2023, BSF charged Late Payment Fees under Loan Agreements on a total of 10,501 occasions, in the aggregate sum of $145,350.

12    In the course of its investigation, ASIC obtained bank statements of both BSF and Cigno Australia. The bank statements held by ASIC demonstrate that:

(a)    in relation to Cigno Australia, the combined balance of those accounts at July 2022 was $16,683,911.85, whereas by May 2023, it had reduced to $373,897.80; and

(b)    in relation to BSF, the combined balance of those accounts at July 2022 was $1,509,073.27, whereas by May 2023, it had increased to $2,206,404.82.

13    ASIC contends that in circumstances where neither BSF nor Cigno Australia holds an Australian credit licence (ACL), both respondents have contravened the prohibition against engaging in credit activity without a licence pursuant to s 29(1) of the Credit Act and the prohibition against demanding, receiving or accepting fees or charges for engaging in credit activity pursuant to s 32(1) of the Credit Act. ASIC contends that BSF is a credit provider and carries on the business of providing credit and performs obligations and exercises rights of a provider under a credit contract within the meaning of Item 1 of s 6(1) of the Credit Act. ASIC contends that Cigno Australia exercised the rights of a credit provider by providing services in relation to a credit contract or proposed credit contract (being Item 1(c) of s 6(1)) or provided a credit service (Item 2 of s 6(1)) as defined in s 7 by providing credit assistance (as defined in s 8) or by acting as an intermediary (as defined in s 9).

14    The No Upfront Charge Loan Model was first implemented in the month after the Full Federal Court decided on 27 June 2022 the case of Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2022] FCAFC 108; (2022) 293 FCR 330 (the BHFS Proceedings). Those proceedings concerned a model called the "continuing credit model" operated by BHF Solutions Pty Ltd (BHFS) and Cigno Pty Ltd (Cigno), two companies related to the present respondent companies and their respective directors.

15    ASIC has helpfully summarised the model at issue in the BHFS Proceedings as follows:

(a)    BHFS and Cigno had entered into an agreement described as a “loan management facilitation agreement” on or around 1 July 2019;

(b)    pursuant to that agreement and the continuing credit model;

(i)    BHFS entered into loan agreements with borrowers. The only fee chargeable to consumers under these loan agreements was the “BHFS fee” or “lender’s fee” of $15. Cigno acted on behalf of BHFS in collecting this fee, which was then transferred to BHFS;

(ii)    Cigno entered into the services agreements with borrowers, pursuant to which Cigno managed the relationship with consumers and their loan repayments under their loan agreements with BHFS;

(c)    four different fees were payable by consumers to Cigno, being:

(i)    a “financial supply fee”, which was a one-time fee calculated having regard to the consumer’s repayment schedule and the amount advanced to the consumer, calculated as fee of $13 plus 60% of the loan amount;

(ii)    an “account keeping fee” of $5.95 per week over the course of the loan;

(iii)     a “change of payment schedule fee” of $22 each time consumers changed their repayment schedule; and

(iv)    a “default fee” of $79 each time consumers defaulted on their repayments.

16    In ASIC v BHF Solutions Pty Ltd, the Full Federal Court construed the expression “charge…made for providing the credit” in s (5)(c) of the National Credit Code (the Code) (being Sch 1 to the Credit Act) as a charge that is made in exchange for, on account of or by reason of the provision of credit on an assessment of all relevant facts in a practical commercial sense, looking to the substance of the credit arrangements rather than their contractual form, and is not determined by analysing whether as a matter of the law of contract the charge is the contractual consideration for the provision of credit: see [171]-[172], [179], [182]-[183] (O’Bryan J, with whom Besanko and Lee JJ agreed).

17    The Full Federal Court held that the financial supply fee in that case was a charge that was made for providing credit by BHFS: [183]. Therefore, BHFS was held to have contravened the Credit Act by engaging in credit activity within the meaning of s 6(1) without holding an ACL. It was unnecessary for the Full Federal Court to decide whether the account keeping fee or the change of payment schedule fee were charges that were made for providing credit within the meaning of s 6(5) of the Code. O’Bryan J said that these were payable for administrative services following the provision of credit, and it seemed “more difficult” to characterise those fees as charges made for providing credit: [185].

18    The primary judge in that case had earlier held that the account keeping fee and change of payment schedule fee were for administrative services and were not charges for providing credit: Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2021] FCA 684; (2021) 153 ACSR 469 at [159]-[160]. However, that reasoning focuses on the contractual consideration for the relevant services and the form in which the terms of the relevant services agreements were expressed, and may or may not be correct in light of the Full Federal Court’s reasoning. On remittal, the primary judge found that Cigno contravened s 29(1) of the Credit Act in addition to BHFS.

19    The respondents submit that the current model does not involve Cigno Australia charging its customers a financial supply fee or anything similar. The respondents also submit that the Account Keeping Fee and Change of Payment Schedule Fee are for administrative services rather than charges for providing credit.

20    In my view, it is important to look beyond the labels used for these fees and to focus on matters of commercial substance. There are significant differences between the account keeping fee in the two cases: in the BHFS Proceedings, that was a flat fee of $5.95 per week over the course of the loan, whereas in the present case, as Mr Fogarty explains in his affidavit at paragraphs 61 to 65, it is a variable fee (payable weekly in advance) calculated by reference to the following: (a) the BSF Credit, ie, the amount of the loan; (b) the term of the Loan Agreement; and (c) the number of instalments required to repay the amount of the loan. The Account Keeping Fee in the present case reduces to $5.95 per week only after the final instalment repayment date (called the Initial Period Finalisation date) (cl 3.7). That suggests a significant similarity between the Account Keeping Kee in the current model and the financial supply fee in the model considered in the BHFS proceedings.

21    However, there are also significant differences between those two fees. The Account Keeping Fee in the current model is payable only once BSF supplies credit to the customer and excludes payment for services before BSF has supplied that credit. In contrast, the services supplied by Cigno in return for the financial supply fee in the previous model were all anterior to the supply of credit and were directed to the provision of credit: see [182(a)] per O’Bryan J.

22    Whether the current Account Keeping Fee is sufficiently distinguishable from the previous financial supply fee considered in the BHFS proceedings is a contestable matter which will be determined at the final hearing. In my view, ASIC’s contention is sufficient to meet the relatively low threshold of a serious question to be tried. As I have said, I accept that ASIC is seeking to protect the public interest and is acting for a purpose contemplated by the Credit Act. While I have focused on the Account Keeping Fee, the other fees and charges must be assessed in the context of the commercial model as a whole and assessed in the light of the whole of the evidence as it emerges at the final hearing. Accordingly, there is a serious question to be tried, in my view, in respect of all the fees and charges incurred by customers to either respondent company.

23    I turn then to the balance of convenience. I note at the outset that the respondents ceased to engage new customers in December 2022 and that the current position, according to the affidavit of Ms Moore at paragraphs 94 to 95, is that there are 6,839 customers owing a total of about $5.1 million.

24    In relation to the position of customers, ASIC emphasises that the Credit Code is remedial legislation designed to protect the public and submits that the interlocutory injunctions would advance and safeguard the public interest manifested in ss 29(1) and 32(1) of the Credit Act. ASIC points to evidence of customers being charged amounts by way of fees and charges well in excess of the principal amount borrowed over relatively short periods of time and well in excess of the caps imposed by the Credit Act and Credit Code. Overall, there are more than 100,000 customers who have entered into agreements with BSF and Cigno Australia under the current model who took out loans totalling about $34 million and were charged more than $70 million in fees. I infer that a substantial number of those borrowers, if not all of them, were in a financially weak position and would find it difficult to meet the payments which the agreements provide for. However, I note that there is no allegation by ASIC that as a matter of the common law of contract these are not amounts due under the contracts which customers voluntarily entered into, and, in my view, there is no basis in the evidence for inferring that the customer contracts were not voluntarily entered into by the customers. By way of riposte to that proposition, ASIC points out that if the respondents held ACLs, then the fees chargeable would have been limited by the caps under the Credit Code, and the policy of the Act is to minimise consumer harm by exposure to exorbitant charges by unlicensed operators. I accept that submission and give it considerable weight in assessing the question of harm to consumers.

25    ASIC also points to the mechanism under s 179 of the Credit Act for consumers to apply for compensation to recover fees, but says, in effect, that that may be cold comfort to customers in circumstances where: (a) ASIC submits that it is unlikely that customers would make such applications given the small amounts at stake and the significant costs of taking proceedings; and (b) there is a real risk that consumers would not be able to successfully recover any such compensation against the respondents because the respondents’ assets may be dissipated and put beyond reach.

26    As to the first of those matters, I note that s 179(3) and (4) confer on ASIC the power to bring such proceedings itself with the consent of consumers expressed in writing. Presumably the legislature gave ASIC that power in light of the likely inability of consumers themselves to undertake those proceedings. ASIC responds by saying that they would need the contact details of consumers in order to obtain their written consent, but, in my view, there are ample facilities available for the Court to make orders against the respondents and any third party service providers in order to ensure that ASIC could readily obtain such details. Accordingly, I do not regard that as a factor of substantial weight.

27    As to the risk of dissipation of assets, ASIC relies on evidence in Mr Fogarty’s affidavit at paragraph 100 that Cigno Australia has reduced the balance of its bank accounts from about $16.7 million in July 2022 to $374,000 in May 2023, although ASIC concedes that there is nothing nefarious or unusual in that. I note in addition that the same paragraph of Mr Fogarty’s affidavit proves that BSF’s bank account moved in the opposite direction, from $1.5 million in July 2022 to $2.2 million in May 2023. While I accept that there may well be a risk of dissipation of assets, no application has been made for a freezing order, and this application is not the appropriate vehicle for assessing whether any such application would be warranted.

28    The respondents submit that if injunctions are granted, then customers will accrue sums owing to the respondents which may be found to be lawful demands at the final hearing without those customers having the ability to pay those amounts from time to time as they fall due. I do not regard that as a persuasive argument. Any such prejudice is slight and could be modified by express notice to the 6,000 or so customers in question as to the need to make provision for that possible eventuality. On the whole, in relation to the position of customers, I regard the potential for harm to them if injunctions are not granted as a factor of substantial weight in favour of the grant of the interim injunction sought.

29    Turning then to the position of the respondents, Ms Moore gave the following evidence in her affidavit, which was neither objected to, nor challenged in cross-examination. If Cigno Australia and BSF are unable to receive income, there is a risk that the respondents will not be able to meet expenses that ensure their respective businesses are able to continue to operate if the Court makes the orders sought by ASIC (paragraph 98). The respondents would lose the ability to receive income while still subject to costs associated with running the businesses, the total outgoings of Cigno Australia for the month of September 2023 being approximately $360,000, and the total outgoings of BSF for the month of September 2023 being approximately $70,000 (paragraph 99). The total trading income for the month ended 30 September 2023 was $1,006,606.63 for Cigno Australia, and $427,493.97 for BSF (paragraph 100). Due to the financial circumstances of the respondents, all income is used to satisfy respective business outgoings (paragraph 101).

30    The respondents keep comprehensive customer records, including customer details, initial loan amounts and fees charged, and these customer records have been provided to ASIC (paragraph 102). All loan records kept by BSF are held on MyFin software, a major third party provider to BSF which requires a monthly service fee of approximately $25,000. If this fee is not paid, BSF will lose electronic access to all customer loan records. BSF is provided with eight staff members from MyFin to support it with loan records entry and associated tasks (paragraph 103). Ms Moore also annexes copies of services agreements with Ezidebit and Split Payments Pty Ltd, being two further examples of supply contracts for which the respondents will be caused to default on their obligations as a result of the interlocutory relief which is sought (paragraph 104). If income is not received, there is a real risk that the respondents will default on their obligations and enter insolvency (paragraph 105). Cigno Australia would cease operations if it were unable to generate any fees pursuant to the Account Keeping Agreement by its customers (paragraph 109). BSF does not have the internal infrastructure to collect the principal amounts which are owed to it by its customers who have chosen to deal with BSF through Cigno Australia (paragraph 110).

31    In reply to the respondents' submissions concerning the position of the respondents themselves, ASIC in its written submissions in reply submits that the alleged severity of the financial harm to them does not justify the refusal of interim injunctive relief, submitting that the respondents have already obtained fee revenue in excess of $70 million from the current business model, their business model is already winding down, and in ASIC v Financial Circle Pty Ltd, the Court granted far more extensive interim interlocutory relief, which had the effect of preventing the respondents in that case from trading and which also affected the employment of a large number of staff (see [80] and [98]).

32    I accept that the figure of $70 million in revenue from fees charged to date tends to suggest that the respondents' business model has been highly profitable. Although the business is currently being wound down, there is no evidence either way as to the future intentions of the directors of the respondents in the event that they succeed in the final hearing, and I infer that they are keeping their options open. If the respondents are ultimately successful at the final hearing, then I would infer that there is a real likelihood that they would wish to resume full operations by engaging with new customers at that point in time. As to ASIC v Financial Circle Pty Ltd, there was very little reference in the reasons of Moshinsky J in that case to the balance of convenience, no doubt reflecting the way in which the argument in that case proceeded.

33    His Honour's reasoning on the balance of convenience was limited to the position of 26 employees whose employment would be affected if the company was required to cease trading and the consequences generally of being required to cease trading, which Moshinsky J described as being "potentially severe" at [5] and [98]. ASIC submits, and I accept, that in that case, Moshinsky J gave substantial weight to the public interest underlying s 29 of the Credit Act, even on the basis of a prima facie case being established, and I regard it as appropriate that I follow that reasoning in the present case and also give substantial weight to the public interest, despite the case being established at this point in time only on a prima facie basis.

34    Ultimately, whether that public interest is determinative depends on all the circumstances of the case, and little is to be gained by comparing one interlocutory injunction application with another, given the multifarious circumstances of individual cases. However, the risk of insolvency and the winding up of the respondents does not appear to have been a factor in ASIC v Financial Circle Pty Ltd, whereas in the present case, the evidence indicates that that is a real risk. The interim injunctions sought in the present case would be, at the very least, highly disruptive to the business operations of the respondents, and at their highest would be destructive of the businesses which the respondents are currently conducting, even in the run-off form in which they are currently being carried on. In my view, the position of the respondents and the potential harm to them is a very substantial factor against the grant of the injunctions.

35    Weighing the relativities of the potential harm to the customers, which, as I have said, favours the grant of the injunctions, against the potential harm in this particular case to the respondents themselves, I would accord the latter more weight, and, accordingly, in my view, the balance of convenience does not favour the grant of the injunctions.

36    I turn then to the question of delay. The current model has been in place since July 2022, almost one and a half years ago. ASIC began seeking information in August 2022 and issued notices on 11 August 2022 and at various times thereafter pursuant to s 33 of the Australian Securities and Investments Commission Act 2001 (Cth). The investigation began on 2 March 2023 and was expanded on 20 July 2023 to include the individual respondents. There are rival arguments between the parties as to whether ASIC or the respondents was more responsible for the various delays, but it is not necessary to resolve those disputes, given the stage that ASIC had reached by early April this year, which was about six months before these proceedings were commenced.

37    On 5 April 2023, ASIC wrote to Piper Alderman, the solicitors for Cigno Australia, noting that while ASIC understood that Cigno Australia had ceased processing new loan applications and had not entered into any new account keeping arrangements since 21 December 2022, it had continued to charge and collect fees under account keeping agreements made on or about that time. The letter referred to Cigno Australia having produced 21 account keeping agreements to ASIC and undertook a reasoned analysis of those and pointed out that in a simple review of client files reviewed to date, ASIC had identified instances where, for example, Cigno Australia had charged consumers $196.60 in Account Keeping Fees in relation to a $90 loan, and $253.90 in Account Keeping Fees in relation to a $200 loan. ASIC then said that, having regard to the matters referred to in its letter, ASIC considers that the Account Keeping Fee is “likely” to be a charge that is or may be made for providing the credit for the purpose of s 5(1)(c) of Sch 1 of the Credit Act, being the Credit Code, and, accordingly, that the Credit Code, including the caps on fees, are likely to apply to the provision of credit by BSF under the No Upfront Charge Loan Agreements. ASIC expressed concern that Cigno Australia, by charging fees of the magnitude which it charged in relation to small loans, had caused and was continuing to cause considerable harm to a large number of clients. ASIC requested an undertaking that Cigno Australia stop charging Account Keeping Fees to its clients and also asked whether, if Cigno Australia intended to continue to charge and collect Account Keeping Fees, it would undertake to retain those fees in a separate bank account in its own name, pending the outcome of ASIC’s investigation.

38    On the same day, a similar letter was sent to Morris Mennilli, the then solicitors for BSF, which also expressed ASIC’s view that the Account Keeping Fee was “likely” to be a charge that is or may be made for providing the credit for the purpose of s 5(1)(c) of the Credit Code and, accordingly, that the Credit Code, including the caps on fees, was likely to apply for the provision of credit by BSF under the No Upfront Charge Loan Agreements. The letter asked for an undertaking that BSF stop charging fees under the No Upfront Charge Loan Agreements to its clients and also whether BSF would retain such fees in a separate bank account in its own name, pending the outcome of ASIC’s investigation.

39    Those requested undertakings were refused by letters dated 28 and 26 April 2023 respectively. I infer from the use of the word “likely” in the context of those letters of 5 April 2023 read as a whole that ASIC was expressing a genuine view which it held at that time, and was not merely advancing a tendentious proposition such as might be advanced by a potential private litigant. ASIC’s explanation for the delay of about six months since forming that view (that the Credit Act applied to the current business model) is that ASIC needed to know the method of calculation behind the Account Keeping Fee, which it only learned on 11 August 2023. Further, ASIC says that it was only on 28 September 2023, a few days before these proceedings were commenced, that ASIC learned how many customers had outstanding amounts, and the amount of their loans. I do not regard those matters, as important as they are as matters of detail for the purpose of the final hearing, as being sufficiently compelling to outweigh the conclusion that ASIC had genuinely formed the view by early April 2023 that it was likely that the current business model implemented by the respondents was a model to which the Credit Act and Code applied. Accordingly, I do not think that there has been an adequate explanation for the delay of five or six months since ASIC formed that view and received the correspondence from the respondents declining to give the undertakings requested.

40    As I have said, in my view, the balance of convenience does not favour the grant of interlocutory injunctions in the present case. The preferable course is to prepare the case for an early final hearing and I will hear the parties in a moment on the steps necessary for that to be done. At this stage, I order as follows:

(1)    The applicant’s application for interim injunctions is dismissed.

(2)    The applicant pay the respondents’ costs of the application for interim injunctions.

Associate:

Dated:    14 November 2023

SCHEDULE OF PARTIES