Federal Court of Australia

Australian Securities and Investments Commission v Green County Pty Ltd (Costs and Adverse Publicity Orders) [2026] FCA 251

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant pay the Third Respondent’s costs on the ordinary basis.

2.    The Amended Statement of Claim be otherwise dismissed.

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

REASONS FOR JUDGMENT

SHARIFF J:

1.    INTRODUCTION

1    On 15 April 2025, I made findings that Green County Pty Ltd (Green County) and Max Funding Pty Ltd (Max Funding) (together, the Corporate Respondents) contravened the National Consumer Credit Protection Act 2009 (Cth) (the NCCP Act) and the National Credit Code (being Sch 1 to the NCCP Act) (Code): Australian Securities and Investments Commission v Green County Pty Ltd [2025] FCA 367 (the Liability Judgment or LJ). I dismissed the case against the third respondent (Ms Ng).

2    Then, on 11 December 2025, I made declarations as to the contraventions engaged in by the Corporate Respondents and imposed penalties against each of them: Australian Securities and Investments Commission v Green County Pty Ltd (Penalty) [2025] FCA 1571 (the Penalty Judgment or PJ).

3    In the result, I imposed penalties totalling $405,000 against Green County and $110,000 against Max Funding. I declined to make adverse publicity orders under s 182 of the NCCP Act on the terms sought by the applicant (ASIC) but granted leave for ASIC to seek a different form of orders, if it wished to do so. I also granted leave for the parties to make submissions as to costs, if they were unable to agree as to the appropriate order to be made.

4    The two issues that remain for determination in the proceedings are:

(a)    whether the revised adverse publicity orders sought by ASIC should be made; and

(b)    whether ASIC should pay Ms Ng’s costs on the indemnity basis after 3 September 2024 (with the parties having agreed that ASIC should otherwise pay Ms Ng’s costs on the ordinary basis).

5    For the reasons that follow, I have determined that:

(a)    the revised adverse publicity orders sought by ASIC should not be made; and

(b)    Ms Ng is not entitled to payment of her costs on the indemnity basis after 3 September 2024.

6    These reasons assume familiarity with both the Liability and Penalty Judgments.

2.    ADVERSE PUBLICITY ORDERS

7    I addressed the issue of adverse publicity orders in the Penalty Judgment at [181]-[211]. It is unnecessary to repeat what I said there.

8    ASIC now seeks the publication of a revised notice (Proposed Notice):

(a)    on the websites of The Australian Financial Review (AFR) and The Australian newspaper (The Australian);

(b)    on two websites identified as www.ifa.com.au (IFA Website) and www.theadviser.com.au (Adviser Website); and

(c)    in the print editions of the AFR and The Australian (in its business section).

9    ASIC seeks that the Proposed Notice be published on the relevant websites specified in (a) and (b) for a period of no less than seven days, with the Proposed Notice to be made accessible by clicking on a click-through banner located on a prominent area of the homepage of each of these websites.

10    The Proposed Notice is in the following terms:

NOTIFICATION OF BREACHES BY GREEN COUNTY PTY LTD AND MAX FUNDING PTY LTD

The Federal Court of Australia has ordered Green County Pty Ltd and Max Funding Pty Ltd to publish this adverse publicity notice.

Green County Pty Ltd (Green County) and Max Funding Pty Ltd (Max Funding) have been ordered to pay penalties of $405,000 and $110,000 respectively after the Federal Court of Australia (Federal Court) found they had breached the law by engaging in unlicensed credit activities in relation to four loans provided by Green County to two consumers. Green County was also found to have contravened multiple provisions of the National Credit Code (Credit Code) in relation to those loans.

Under the National Consumer Credit Protection Act 2009 (Cth) (Credit Act), consumer credit providers must hold an Australian Credit Licence (ACL) and are subject to responsible lending and disclosure obligations. Together with the Credit Code, these provide important protections to consumers in relation to consumer credit products, such as personal loans.

The Credit Code applies to credit contracts where the credit is to be provided for a “Code purpose”, specifically: (a) for personal, domestic or household purposes; or (b) to purchase, renovate or improve residential property for investment purposes (or to refinance credit provided for this purpose).

Where a credit provider obtains an effective business purpose declaration from a potential borrower in respect of a credit contract, the credit provider is not required to hold an ACL and the Credit Code does not apply to the credit contract. However, a business purpose declaration is ineffective if, when made, the credit provider knew, had reason to believe or would have known, or had reason to believe if the credit provider made reasonable inquiries about the purpose for which the credit was being provided that the purpose was, in fact, personal use. If the business purpose declaration is ineffective, the credit provider must hold an ACL in order to provide the credit and the consumer credit protections under the Credit Code apply.

Between 19 June 2017 and 4 May 2021, Green County operated a credit lending business. Max Funding advertised and referred prospective borrowers to Green County. Neither held an ACL and Green County did not advance credit to customers unless, prior to entering into an initial credit contract with the customer, the customer signed a business purpose declaration.

The Federal Court found that Green County and Max Funding breached the Credit Act and the Credit Code in respect of two loans for one consumer and two loans for another consumer. A business purpose declaration was obtained for one loan but was ineffective because Green County and Max Funding failed to make reasonable inquiries, in the circumstances, as to whether that loan was for business purposes when the loan was actually for personal, domestic, or household purposes. Green County and Max Funding consequently required an ACL to engage in a credit activity in relation to that loan, and the Credit Code applied to the loan. For the other three loans, no business purpose declaration was obtained and the loans were presumed to be for personal, domestic, or household purposes. Green County and Max Funding were therefore required to have an ACL and the Credit Code applied to the loans.

Further information

For further information about the Federal Court's findings, see the Australian Securities and Investments Commission v Green County Pty Ltd [2025] FCA 367 and the Court's penalty judgment here.

See ASIC’s media release: 25-301MR Business lender and loan introducer together penalised $515,000 over credit law breaches | ASIC

See ASIC Regulatory Guide – RG 203

(Original emphasis retained and hyperlinks omitted.)

11    ASIC submitted that the Proposed Notice addressed the issues I had raised in the Penalty Judgment and achieved the regulatory purposes which I had identified more generally at PJ [204] and [210]. ASIC submitted that requiring the Corporate Respondents to publish the Proposed Notice would achieve the aim of deterrence, which would not be met by ASIC publishing an equivalent notice. It was submitted that the AFR and The Australian are national newspapers of wide reach and that the IFA and Adviser Websites are “online industry publications”, such that the Proposed Notice could be expected to reach the target audience of other credit providers.

12    The respondents opposed the making of orders requiring the Proposed Notice to be published. Amongst other things, and aside from making criticisms as to particular aspects of the Proposed Notice, the respondents submitted that there was no evidence that the Proposed Notice would draw any greater publicity to the matter in the relevant industry than publications that have already been made by ASIC and others. In this respect, the respondents attached to their written submissions various publications, including a media release issued by ASIC and articles published by law firms and other third parties. At least one of those articles has been published on the Adviser Website.

13    The respondents further submitted that there was no evidence to enable the Court to be satisfied that the publications and websites identified by ASIC are those most likely to reach the intended audience. For example, it was submitted that there was no evidence that small business lenders review the IFA and Adviser Websites (which are said to be aimed at financial advisers), or that they read the AFR or The Australian newspapers. It was further submitted that ASIC had not led evidence as to the cost that would be incurred in publishing the Proposed Notice on the websites of the AFR and The Australian for a period of seven days, and that ASIC had not led evidence of whether such cost would be proportionate to the regulatory purpose to be served by the Notice.

14    I am not satisfied that the adverse publicity orders should be made in light of the limited evidence before me and the circumstances that have come to pass.

15    In coming to this conclusion, I accept that the content of the Proposed Notice does draw attention to important aspects of the regulatory scheme, which were highlighted by the Liability Judgment, and is adapted to general and specific deterrence.

16    However, the question that arises here is one as to the effectiveness of what is proposed, so that what is required to be done is not done merely for the purpose of saying it was done and no more. Lee J addressed these types of concerns in Australian Securities and Investments Commission v Commonwealth Bank of Australia [2021] FCA 423 at [45]–[53] and Australian Securities and Investments Commission v Commonwealth Bank of Australia (No 2) [2021] FCA 966 at [43]-[59].

17    The difficulty in the present case is that I have little evidence before me about the effectiveness of what is proposed. As I adverted to at PJ [211], by the time the parties addressed me on the adverse publicity order, ASIC had run its case and filed evidence in support of the orders that it sought. In those circumstances, I did not consider it appropriate for ASIC to be permitted to lead further evidence. The result is that I have limited evidence as to the effectiveness of the Proposed Notice being published in the AFR, the business pages of The Australian, the IFA Website or the Adviser Website.

18    I can readily be satisfied that the AFR and The Australian are newspapers that have a national print circulation and an even greater online reach. It may also be readily accepted that their readership includes a broad cross-section of the community, including those who wish to read matters of business, financial and economic interest. However, they are subscription-based publications, both in their online and print editions, though they may also be made available for wider consumption in reception areas, airline lounges and the like. Whilst I am prepared to accept that these publications may be read by executives at the larger banks who provide credit to small businesses, they are only one part of the relevant industry. I observed in the Liability Judgment at [464], there appear to be a number of non-bank small business lenders that operate in the marketplace. I am not prepared to infer that those who manage non-bank lenders are readers of the AFR or The Australian.

19    I received no evidence as to the IFA and Adviser Websites. I was invited to draw inferences about them. All I can infer is that these websites are directed to financial advisers and related professionals. I do not know whether the websites are subject to subscription-based paywalls. I do not have any evidence that participants in the small business lending industry in Australia are regular users of those websites.

20    The point about all of this is that I cannot be satisfied that the regulatory purpose would be achieved by requiring the publication of the Proposed Notice. It strikes me that on the evidence I have available to me, I would be ordering the Corporate Respondents to publish the Proposed Notice merely for the sake of doing so in the prospect that the relevant regulatory message will be conveyed to the target audience and otherwise be punitive as against the Corporate Respondents. There is clearly a regulatory purpose manifested in s 182(1) of the NCCP Act that is sought to be promoted by empowering the Court to require a contravener to publish the fact of their civil wrongdoing and, in a case such as the present, to inform and remind others in their position to comply with the law in the way that the Court has determined. However, I am not satisfied that these purposes will be achieved in the present circumstances on the evidence before me.

21    Given the limited nature of the evidence, I am not satisfied that the orders sought by ASIC should be made.

3.    COSTS

22    The award of costs is in the Court’s discretion as provided for in s 43(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The usual rule is that an order for costs means (without further description) costs are payable “as between party and party”: r 40.01 of the Federal Court Rules 2011 (Cth).

23    The discretion to award costs on a basis other than as between party and party, including on the indemnity basis, is “unfettered, save that it must be exercised judicially and not arbitrarily or capriciously”: Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union (No 4) [2018] FCA 684 at [96] (Middleton J). The purpose of an award of indemnity costs is to compensate a party fully for costs incurred when it was unreasonable for the party against whom the order is made to have subjected them to the expenditure: see Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 5) [2021] FCA 246; 151 ACSR 26 at [8]-[16] (Wigney J).

24    As a regulator, ASIC is in no special position in being subject to orders for indemnity costs: Colgate-Palmolive at [15]-[16]; Australian Securities and Investments Commission v TerraCom Ltd (No 2) [2025] FCA 959 at [9]-[12] (Jackman J). However, it has been accepted that before making an order for indemnity costs against a regulator, consideration may need to be given to the fact that the public policy involved in a regulator litigating civil penalty proceedings may not make those proceedings as amenable to a commercial settlement as ordinary commercial litigation: Colgate-Palmolive at [16]; TerraCom at [11].

25    There was no dispute between the parties that ASIC is liable to pay Ms Ng’s costs on the ordinary basis (as between party and party) up to 3 September 2024. The dispute between the parties is whether ASIC should pay Ms Ng’s costs on the indemnity basis after 3 September 2024. I am not satisfied that such an order should be made.

26    On 3 September 2024, the respondents collectively made an offer to resolve the proceedings (the Offer). The terms of the Offer had inseparable components and relevantly included that:

(a)    the Corporate Respondents would consent to declarations as to some of the contraventions of the NCCP Act, would further consent to injunctive relief, and pay a penalty in the sum of $350,000 (being an amount which was jointly and severally payable by both Corporate Respondents, but which could be attributable in such apportionment to either Corporate Respondent as ASIC considered appropriate); and

(b)    Ms Ng would admit a contravention of s 180 of the Corporations Act 2001 (Cth) and pay a penalty in the amount of $150,000.

27    The Offer did not include any component making provision for Ms Ng to consent to a disqualification order. That was intentional as Ms Ng did not propose to consent to any such order.

28    Having received the Offer, ASIC sought clarification from the respondents as to whether “if settlement terms other than disqualification” could be agreed between the parties, Ms Ng’s position was that she would not agree to any settlement offer that involved a disqualification order. The response from the respondents was that they were “only prepared to negotiate and agree terms of settlement on a global basis to resolve all claims in the proceeding” and that it was a matter for ASIC whether it wished to make a counter-offer. Ultimately, ASIC responded by stating that for it to agree to any settlement on a “global basis”, the compromise had to include disqualification orders against Ms Ng. There were no further offers.

29    The evident sticking point between the parties was whether the respondents would countenance a settlement on anything other than a “global basis” excluding a period of disqualification for Ms Ng. The respondents were not willing to countenance that course, and, for its part, ASIC was unwilling to accept anything less if other terms could be agreed.

30    The question that arises is whether, in all these circumstances, ASIC acted unreasonably in rejecting the Offer. I am not satisfied that it did.

31    In the events that have come to pass, the component of the Offer relating to Ms Ng represented a better outcome for ASIC than the ultimate outcome in the Liability Judgment. However, ASIC has obtained a more favourable outcome against the Corporate Respondents. By reference to the overall outcome, it was not unreasonable for ASIC to have rejected the Offer. That is especially so in circumstances where the respondents expressed a preparedness only to countenance offers on a “global basis”. Whilst it is true that ASIC equally expressed a preparedness only to countenance a settlement on the basis that Ms Ng agree to a period of disqualification, the respective positions taken by the parties were such that I am not satisfied that it was unreasonable for ASIC to reject the Offer.

32    Nor am I satisfied that it was unreasonable for ASIC to have rejected the Offer at the time because it knew or ought to have known that the case against Ms Ng was doomed to fail. Whilst that case was not ultimately successful, it did not bear the character of a case that was unreasonable for ASIC to have conducted.

33    It follows that I reject Ms Ng’s claim for ASIC to pay her costs on the indemnity basis after 3 September 2024. It further follows that ASIC is liable to pay Ms Ng’s costs on the ordinary basis.

4.    DISPOSITION

34    I will make orders that ASIC pay Ms Ng’s costs on the ordinary basis and otherwise dismiss ASIC’s Amended Statement of Claim.

Associate:

Dated:    20 March 2026