Australian Securities and Investments Commission v SunshineLoans Pty Ltd

INTRODUCTION 1 By these proceedings, the Australian Securities and Investments Commission (ASIC) as the regulator with responsibility for the enforcement of the National Consumer Credit Protection Act 2009 (Cth) (NCCPA) seeks relief against SunshineLoans Pty Ltd (Sunshine Loans) in respect of alleged contraventions of the NCCPA in the course of its money lending business. Specifically, ASIC alleges that Sunshine Loans charged its customers, who had entered into "small amount credit contracts" (as defined in the NCCPA) certain fees which were prohibited. The relief sought by ASIC includes injunctions and declarations of contravention, as well as the imposition of civil penalties. 2 Sunshine Loans denies the alleged contraventions and claims that the fees in issue, which were referred to in its contracts with its customers variously as an "Amendment fee" or a "Rescheduled payment fee" were, in fact, fees which were payable on the customers' default and so permitted under the legislation. It further alleges that ASIC does not have standing to bring the proceedings and, consequently, that this Court does not have jurisdiction to hear the matter. This latter issue was raised in the course of the interlocutory steps in these proceedings, though it was not until shortly before the commencement of the trial that Sunshine Loans sought to properly agitate the issue by seeking to have it determined separately by a Full Court. Its attempts to do so failed: see Australian Securities and Investments Commission v SunshineLoans Pty Ltd [2023] FCA 640 (with leave to appeal from that decision being refused in SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2023] FCA 707). It subsequently sought to raise the issue as an initial point at the commencement of the proceedings. That was allowed and, after hearing from the parties on it, the determination of that question was reserved and the hearing of the evidence in relation to the issues of liability continued. 3 These reasons deal with both the initial question of standing and the question of liability. For the purposes of explaining the issues raised in relation to standing, it is necessary to attribute some nomenclatures to the legislation under consideration. The abbreviation "NCCPA" will be a reference to the whole of the National Consumer Credit Protection Act, whilst the expression the "Credit Act" will refer to that Act save for Sch 1, which is the National Credit Code. In turn, the National Credit Code will be referred to simply as the "Credit Code". 4 Before turning to the issue of standing, it is useful to provide some background to the proceedings which contextualise how that issue and the question of jurisdiction arises.