SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2025] FCAFC 34 - FCAFC 2025 case summary — Zoe

CTHFCAFC

SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2025] FCAFC 34

[2025] FCAFC 34

Federal Court of Australia (Full Court)|2025-03-24|Before: Colvin JJ

View original source

At a glance

Source facts

Court

Federal Court of Australia (Full Court)

Decision date

2025-03-24

Before

Colvin JJ

Source

Original judgment source is linked above.

Judgment (129 paragraphs)

[1]

CONSUMER LAW - appeal from declarations of contraventions of s 47(1) of the National Consumer Credit Protection Act 2009 (Cth) (Act) and s 24(1A) of the National Credit Code (Code) in proceedings brought by regulator under the Act - where appellant in the business of providing small amount credit contracts - where small amount credit contracts made provision for a 'rescheduled payment' or 'amendment' fee (Amendment Fee) - whether primary judge erred in finding that the Amendment Fee could not be imposed consistently with the Code because it was a fee prohibited by s 23A and s 31A of the Code - whether evidence as to the circumstances pertaining when an Amendment Fee was charged under the contracts relevant to establishing contraventions - held upon proper construction of contract terms, Amendment Fee could not be imposed consistently with the Code - contraventions upheld - appeal dismissed

[2]

CONSUMER LAW - jurisdiction - where detailed provision made in Act for enforcement of its provisions by regulator - where no like provisions found in the Code - where provisions of the Act enabling the regulator to seek civil penalties for transgressions of Code introduced in 2019 - whether provisions in the Act which empower regulator to apply to the Court for declarations of contraventions and for pecuniary penalties also apply to contraventions of the Code, such that the regulator has statutory authority to apply to the Court seeking declarations - whether Court has jurisdiction to make declarations for pre-2019 conduct - held provisions in the Act with respect to enforcement apply to the Code - source of the Court's jurisdiction to grant declaratory relief different for pre- and post-2019 conduct - source of Court's jurisdiction to grant declaratory relief in respect of pre-2019 conduct found in of the (Cth) - declaratory orders of primary judge set aside and restated

[31]

SunshineLoans Pty Ltd conducts a business as a provider of credit. Between 1 July 2016 and 2 November 2020, an 'amendment fee' of $35 was charged by Sunshine to thousands of its customers who had entered into 'small amount credit contracts' (described by the parties as SACCs). The fee was paid by many of them. The Australian Securities and Investments Commission alleged that Sunshine contravened the National Credit Code by entering into the contracts and by charging and receiving the fee. ASIC brought proceedings against Sunshine seeking declarations of contravention and orders imposing pecuniary penalties. Sunshine defended the proceedings. In addition to maintaining that ASIC had not established any contravention of the Code, Sunshine claimed that, for various reasons, the Court lacked jurisdiction to entertain the proceedings.
The primary judge conducted the final hearing in two stages. The first stage was for the determination of the jurisdictional issues and whether 'liability' had been established. The second stage was for the determination of the terms of any relief, including pecuniary penalties. Upon completion of the first stage of the final hearing, the primary judge delivered reasons determining that the Court had jurisdiction and concluding that Sunshine had contravened the Code: Australian Securities and Investments Commission v SunshineLoans Pty Ltd (No 2) [2024] FCA 345 (PJ).
After delivering those reasons, the primary judge then listed a date for the determination of the relief to be granted on the application, including whether there should be an order imposing pecuniary penalties and, if so, the amount of those penalties. Sunshine claimed that by reason of certain adverse findings that had been made by the primary judge in the reasons that had been published, the primary judge should recuse himself from conducting the further hearing. The primary judge made declarations of numerous contraventions of s 23A(1), s 24(1A)(b), s 31A(1) of the Code and s 47(1)(d) of the National Consumer Credit Protection Act 2009 (Cth) (Credit Act) but otherwise recused himself and made orders for the proceedings to be reallocated to another judge: Australian Securities and Investments Commission v SunshineLoans Pty Ltd (No 3) [2024] FCA 786.
Sunshine has appealed against the making of the declarations. ASIC has appealed against the orders for reallocation. These reasons concern Sunshine's appeal.

[37]

It was the position of Sunshine that the amendment fees that it had imposed were fees 'payable in the event of default in payment under the contract'.
The manner in which the contracts may have been administered or the circumstances in which the contentious amendment fees may have been imposed are matters that have no relevance to an adjudication of the merits of ASIC's case insofar as it alleged contraventions of s 24(1A)(a). The terms of the statute are such that it is clear that it is the act of entry into a contract which imposes a fee of a kind that is prohibited that constitutes the contravention. Aside from the jurisdictional points raised by Sunshine, the only matter raised by Sunshine that might have answered that aspect of ASIC's case was its claim that under the terms of the contracts the amendment fee was only payable in the event of default in payment under the contract. Whether that is so must turn upon the proper construction of the contract terms.
Contentions by Sunshine to the effect that the circumstances pertaining as between Sunshine and each of its customers when an amendment fee as provided for in a contract came to be required to be paid might bear upon whether there was a contravention of s 24(1A)(a) lacked any foundation in the statutory language and must be rejected. Post contractual conduct of that kind could not bear upon the proper construction of the contract terms: Agricultural and Rural Finance Pty Limited v Gardiner [2008] HCA 57; (2008) 238 CLR 570 at [35]. No contrary submission was advanced by Sunshine in the appeal.
As to (b), Sunshine accepted that it had both required and accepted payment of 'amendment fees' from thousands of its customers (noting that not all customers who were charged the fee actually paid the fee as charged). However, Sunshine maintained that in the circumstances in which those fees had been required to be paid (and in which payment was accepted in those instances where the amendment fee was paid) the fees were imposed consistently with the Code.
Sunshine claimed to have imposed the amendment fee on the basis that it was entitled to do so because of the terms of the contracts it entered into with its customers. Its case was that the amendment fees were (a) only permitted by the contracts to be imposed if there was an event of default in payment under the contract; or (b) were only imposed in circumstances where there was a default. On that basis it was said that its conduct did not contravene the Code.
The offence as expressed in s 24(1A)(b) of the Code occurs where a payment of an amount is required or accepted 'in respect of a monetary liability that cannot be imposed consistently with the Code'. Relevantly for present purposes, it is s 31A(1) that specifies what cannot be imposed. Section 31A(1) is concerned with fees or charges that may not be imposed by a small amount credit contract. That is to say, it is a prohibition upon the imposition by contract of fees or charges. It provides that a small amount credit contract 'must not impose or provide for' fees and charges unless they are of the kind there specified; relevantly for present purposes, where the fee or charge is payable in the event of default in payment under the contract.
Significantly, conduct constituting the offence created by s 24(1A)(b) occurs when payment is required or accepted by Sunshine in respect of 'a monetary liability that cannot be imposed consistently with this Code' (emphasis added). As has been explained, where the terms of a small amount credit contract impose or provide for a fee or charge of a kind that is not specified in s 31A then the prohibition in that section has been breached. Put another way, when it comes to fees or charges in a small amount credit contract, a monetary liability cannot be imposed consistently with the Code if its source is said to be a contract term of the kind that is prohibited by s 31A.
So, for the purposes of s 24(1A)(b), if an amount is required or accepted for payment on the basis that the monetary liability is sourced in a contractual term that is prohibited by the Code then it is a monetary liability that 'cannot be imposed consistently with this Code'. It would not matter whether the factual circumstances in existence at the time that the amount was required or accepted for payment were such that a different form of 'monetary liability' might have been able to be imposed consistently with the Code. The terms of s 24(1A)(b) focus upon steps taken to obtain payment based upon a 'monetary liability' that the Code does not allow the credit provider to create or impose. It is not concerned with whether the credit provider might have been able to impose some other type of lesser, more constrained or different monetary liability consistent with the Code. It is also not concerned with the particular circumstances in which the steps were taken to require or accept payment in respect of the monetary liability that the Code does not permit the credit provider to impose, specifically whether the fee or charge in fact was imposed in circumstances that might be characterised as the customer being in default in making payment under the contract. The only issue is whether there was a connection between the act of requiring or accepting payment and the monetary liability that cannot be imposed. The required connection is that the act of requiring or accepting payment must be 'in respect of' such a monetary liability. Where the fee or charge is shown to have been imposed by reference to the terms of a small amount credit contract that required connection is established.
The above analysis is supported by the character of s 24(1A)(a) which creates an offence of making a contract 'imposing a monetary liability' that is prohibited. Section 24(1A)(b) creates the related offence of seeking to give effect to that contract.
Further, as was explained by the primary judge, the language used in s 24(1A) must be understood in the context of the terms of s 23A(2) of the Code which provides that a provision of a small amount credit contract that imposes a monetary liability prohibited by the Code is void to the extent that the provision relates to the liability. Therefore, s 24(1A) creates an offence in relation to conduct concerning credit contracts that impose void liabilities. Consequently, the offence is not expressed (as you might otherwise expect) as a prohibition upon entering into or giving effect to a provision of a small amount credit contract that the Code provides must not be imposed. Language of that kind would confront the problem that the Code provides that any such provision is void (with the consequence that it was not a provision that could be given effect). Instead, the offence is expressed as a prohibition upon entering into such a contract 'on terms imposing a monetary liability' that is prohibited (s 24(1A)(a)) and requiring or accepting payment of an amount 'in respect of a monetary liability that cannot be imposed' (s 24(1A)(b)) (emphasis added). Once this further aspect is brought to account it is abundantly clear that the language of s 24(1A) is concerned with the making of a contract with a prohibited term and with requiring or accepting payment of money on the basis of the prohibited term.
The fallacy which lies at the foundation of much of the case agitated by Sunshine before the primary judge and on appeal is the notion that Sunshine might be able to justify its conduct in charging and receiving an amendment fee by demonstrating that, in fact, it was only imposed when the customer was in default; or in circumstances where, as a matter of contract law, there was no agreed variation to the contract (but rather conduct permitting the customer to defer payment). None of that matters because the offences created by s 24(1A) concern the making by a credit provider of a contract with a term imposing the monetary liability and requiring or accepting money 'in respect of' that monetary liability by relying upon that contract as the basis for doing so.
Therefore, in circumstances where Sunshine accepted that it had imposed the relevant fees on the basis of the terms of its contracts with its customers, had required payment of the fees on that basis (and in many instances had accepted payment on that basis), the only issue for the purposes of the alleged contraventions of s 24(1A)(b) was whether the fee could be imposed by the contracts consistently with the Code. Resolution of that issue turned on the proper construction of the contracts.
Consequently, the merits of ASIC's case that Sunshine had contravened s 24(1A) in the manner alleged by ASIC turned entirely upon the proper construction of Sunshine's contracts, particularly whether the amendment fee was 'a fee or charge that is payable in the event of a default in payment under a contract' (as well as the jurisdictional points raised by Sunshine).
As will emerge, the reasoning of the primary judge rested upon his Honour's conclusions as to the proper construction of the contracts (and the rejection of the jurisdictional points) and also upon an alternative reasoning pathway concerning the evidence as to the circumstances in which the amendment fee was imposed by Sunshine. His Honour made detailed findings of fact and law for the purposes of the alternative pathway. However, they were necessary only to deal with various arguments advanced by Sunshine which sought to give significance to the dealings between Sunshine and its customers when amendment fees were imposed and the manner in which Sunshine was said to have imposed those fees. In a rather confused and unfocussed way, Sunshine sought to challenge those findings on the appeal (a matter to which we will return). However, the significant point to be made at this stage is that, in order to succeed on appeal, Sunshine had to demonstrate that his Honour's approach to the proper construction of the contracts was in error (or to establish error in his Honour's conclusions about jurisdiction).
For the reasons which follow, his Honour's conclusions as to the construction of the contracts and as to jurisdiction were correct.
ASIC also alleged that Sunshine's conduct amounted to a contravention of s 47(1)(d) of the Credit Act. That provision required Sunshine as the holder of a credit licence to 'comply with the credit legislation'. The primary judge found that by contravening s 24(1A) of the Code, Sunshine failed to comply with the credit legislation: PJ[344]-[345]. The logic of that reasoning is not sought to be impeached. Therefore, Sunshine's challenge to the declarations as to contraventions of s 47(1)(d) of the Credit Act falls with the failure of its case concerning s 24(1A) of the Code.

[40]

The primary judge began by observing that the contracts utilised by Sunshine during the relevant period 'took five different forms, although each version was substantially the same': PJ[103]. His Honour then considered the relevant terms of the contracts: PJ[104]-[116]. In the course of doing so, he noted that the relevant fee had been referred to as a 'Rescheduled payment fee' in the version of the contract first used in the relevant period but that in subsequent iterations it was relabelled as an 'Amendment fee': PJ[108]. His Honour then observed that, in respect of those fees, they were included in the 'Financial Table' at the beginning of the contract but were not referred to in the contract terms: PJ[116]. The primary judge thereafter used the term 'Amendment Fee' to encompass both terms. We will do the same.
After dealing with the onus and standard of proof, the primary judge considered the meaning of the relevant Code provisions. At PJ[143] his Honour observed that ultimately the issue between the parties as to s 31A(1) was whether the Amendment Fee imposed or provided for in the various iterations of the contract used by Sunshine was 'payable in the event of a default in payment under the contract'. Importantly, his Honour then said: 'If it was not, it would be beyond the scope of the permitted terms in s 31A(1) and result in a contravention'.
His Honour then turned to s 24(1A). As to paragraph (a) of that provision, his Honour concluded that it applies to contracts which 'purport to impose terms which are prohibited by the [Code]': PJ[149]. As to paragraph (b) of that provision, his Honour concluded that a contravention would occur 'when the credit provider seeks to obtain payment or accepts payment purportedly in relation to a prohibited monetary liability': PJ[150]. Those conclusions were reached after considering the significance of s 23A(2) which, as we have noted, avoided terms of contracts that were prohibited. His Honour then found that whether or not the contracts purported to impose a prohibited monetary liability by reason of the Amendment Fee was 'a matter of contractual interpretation': PJ[151].
In the course of the above reasoning, his Honour said about the offence created by s 24(1A)(b) (at PJ[150]):

[44]

Therefore, his Honour approached the issue whether there had been contraventions by Sunshine of s 24A(1A) on the basis that it turned upon the proper construction of the contract terms as to the Amendment Fee, save only for the need to show, in fact, that such a fee had been required or accepted (or both) on the basis of the terms of the contract.
His Honour then dealt with the proper construction of the contract provisions concerning the Amendment Fee: PJ[152]ff. He found that the descriptions used in the contracts for the fee indicated when it was payable: PJ[152]-[155]. The primary judge also found the nature of the fee to be further revealed by provisions in the contracts that allowed for scheduled repayments to be varied or amended by mutual agreement: PJ[156]-[157]. It was said to be coherent for the fee to be referable to such instances: PJ[158].
If there was need for regard to surrounding circumstances by reason of ambiguity, his Honour found that the Information Statement given to each customer at the time of entry into a contract supported the above interpretation because it directed the customer to ask the credit provider to change the contract if the customer could not make a repayment or to seek to have it changed in certain circumstances: PJ[160]-[163].
Having construed the relevant contract terms, his Honour then concluded that in order to be a fee that was payable 'in the event of a default in payment under the contract' there had to be a causal connection between the fee being payable and the default: PJ[165]-[167], see also PJ[141].
His Honour then considered whether the Amendment Fee was a prohibited fee: PJ[168]ff. His Honour began by observing that: 'on its face, the fee is payable on the parties agreeing to amend the terms between them' and that 'the contractual obligation to pay the fee does not arise consequent upon the borrower having made a default in payment of any amount otherwise payable under the agreement': PJ[168].
On that basis, the primary judge concluded that the Amendment Fee was a fee or charge prohibited by s 31A of the Code: PJ[169]. Based on that conclusion, and after rejecting certain other contentions not relevant to the appeal, his Honour concluded that on each occasion that Sunshine entered into a contract that contained an Amendment Fee in the Financial Table it contravened s 24(1A)(a): PJ[170], [183]. Therefore, the conclusion as to the proper construction of the contracts was the basis upon which those contraventions were found to be established. It was not necessary to analyse the way in which Sunshine charged the Amendment Fee: PJ[172].
The primary judge then turned to s 24(1A)(b): PJ[184]ff. His Honour identified two approaches to assessing whether there had been contraventions as alleged: PJ[190]ff. He described them at PJ[195]-[197] in the following terms;

[58]

(1) at the beginning of the contract was a 'Financial Table' that set out various details including various fees and charges;

(2) the fees and charges set out in the Financial Table included, amongst other fees, an establishment fee, a default fee (also described as a failed payment fee) and a rescheduled payment fee or an amendment fee (in the Financial Table for the first, second and third versions of the contract there was provision for a rescheduled payment fee, but no amendment fee; the fourth and fifth versions provided for an amendment fee but no rescheduled payment fee);

(3) there was a contract term to the effect that the customer would pay the 'Credit Charges shown in the Financial Table' (the fourth and fifth versions referred to 'Applicable Charges shown in the Financial Table', a change which coincided with a change to the format of the Financial Table, see below);

(4) there was provision in the contract terms for repayments to be made by direct debit (earlier versions referred to payment by direct debit if Sunshine's 'Direct Debit Request New Customer Form' had been signed by the customer);

(5) there was a contract term to the effect that the customer must make the repayments shown in the Financial Table 'subject to any other repayment arrangements or variations agreed between us from time to time';

(6) there was a contract term to the effect that the customer would be in default if the repayments shown in the Financial Table were not made when due, if any other payment required under the contract was not made, if false or inaccurate information was provided or if the customer breached any 'variation' of the contract as agreed or imposed by a court, tribunal or dispute resolution agency;

(7) there was also a contract term to the effect that if the customer was in default then the unpaid balance of the credit provided and 'any other default fees, credit fees or other charges or other amounts payable' became due and payable; and

(8) the contract was said to comprise the Financial Table and the contract terms.

[61]

Further, the Information Statement was provided to meet a regulatory requirement in the Code. Section 16(1)(b) of the Code requires a statement to be given in the terms specified by regulation. Regulation 70 of the National Consumer Credit Protection Regulations 2010 (Cth) specifies that an information statement must be in accordance with Form 5. The form is in Schedule 1 to the Regulations. The Information Statement provided by Sunshine reflected the terms of statement in the schedule to the Regulations insofar as its terms applied to Sunshine's credit contracts.
There is an apparent correspondence between (a) the contents of the Information Statement; and (b) the terms of the contracts which required repayment as shown in the Financial Table subject to other arrangements or variations agreed and the provision about default which allowed for the possibility of variation as agreed or as imposed by a court, tribunal or dispute resolution agency. That is to say, they both contemplated the possibility that during the term of the contract a request might be made by a customer to vary its terms which may be agreed with Sunshine.
With each version of the contract there was a direct debit form. It authorised an agent of Sunshine to make periodic debits on its behalf from a nominated bank account of the customer.
The form of the Financial Table was changed in minor respects from one version of the contract to the next. The first, second and third versions had a heading 'Credit Fees and Charges'. Under that heading were various fees and charges including an 'Establishment fee', monthly credit charges, a 'Default fee or Direct Debit Dishonour fee' and 'a Rescheduled payment fee'.
The fourth and fifth versions also had a heading 'Credit Fees and Charges' and under that heading were charges that included an 'Application fee' and monthly credit charges. There was then a further heading 'Other fees and charges which may be charged by us' and under that further heading were three fees, 'Failed payment fee', 'Amendment fee' and 'Arrears Account Management Fee'. As has been mentioned, the provision in the contract that required the payment of charges was also changed for the fourth and fifth versions. In the first, second and third versions, the clause was expressed as follows:

[67]

These provisions show that there was little consistency in the terminology used in the contracts to refer to fees and charges. However, what is clear is that there is simply no foothold in the terms of the contract for a contention that the Amendment Fee was only payable if there had been default.
Otherwise, none of the versions of the contract included any description as to the circumstances in which the Amendment Fee could be imposed. The fee names are themselves expressed in descriptive terms. The language used itself indicates the circumstances in which it may be imposed.
In each version of the contract, the Financial Table commenced by stating that the Financial Table together with the contract terms 'forms the Consumer Credit Contract between you [the customer] and us [Sunshine]'. It also recorded that the terms of the contract were 'set out in this Financial Table and the Consumer Credit Contract Terms'. There are a number of provisions in the contract terms that refer to what is stated in the Financial Table. They refer to charges specified in the Financial Table (though they do so by referring in general terms to charges shown in the Financial Table rather than by identifying specific charges using the names in the Financial Table). Further, as has been mentioned, they do not appear to define or specify the nature of the charges provided for in the Financial Table.
In those circumstances, a reasonable party to the contracts would conclude that it is the descriptive language used in the Financial Table that identifies the circumstances in which the relevant fee may be charged. Such a construction explains the use of the term 'Applicable Charges' in later versions and the inclusion of the 'Rescheduled payment fee' under the heading 'Credit Fees and Charges' in the Financial Table for earlier versions as well as the absence in the terms of the contracts of provisions which explain the nature of the various charges and when they may be imposed.
Having regard to those terms of the contract which expressly contemplated agreement between the parties to change the payment arrangements, the proper construction of the contracts is that it provided for the Amendment Fee, however described, to be imposed if any change to the payment arrangements was agreed with the customer, irrespective of the circumstances in which that change was agreed. Regard to the context of the terms of the Information Statement provisions that directed the customer to seek such changes from Sunshine supports that construction. It may be the case that a customer was in default at the time agreement was reached to change the payment arrangements (or had indicated an inability to pay unless there was an amendment to those arrangements). However, the contract did not provide for the relevant fee to be imposed by reference to whether there had been a default. On the terms of the contracts, it was Sunshine's agreement to change the payment terms that enabled it to impose the relevant fee.
Therefore, we agree with the primary judge that the fact that the imposition of the fee or the requirement to pay the fee or the acceptance of payment of the fee might coincide with a point in time when the customer was in default would not mean that the monetary liability in the form of the Amendment Fee was in respect of a fee that was 'payable in the event of a default in payment under the contract'. Rather, in order to be within those terms, the obligation to pay the fee itself must be conditioned upon the event of a default. Put another way, it must be the default that gives rise to the imposition of the fee. Under the terms of the contracts, it was not default by the customer that gave rise to the imposition of the relevant fee.
It follows that the rather convoluted contentions advanced for Sunshine to the effect that there was some form of anticipatory breach of the contract when a customer indicated an inability to pay a credit charge due in the future that might bring the relevant fees within the statutory language of a fee payable in the event of default in payment under the contract was an irrelevant distraction. It was not that conduct that gave rise to the payment of the fee. The event giving rise to the imposition of the relevant fee was the agreement by Sunshine to change the payment arrangements.
Likewise, it is not necessary to form any view as to whether there was a variation of the terms of the contracts in accordance with the common law of contract. What mattered was the fact of the agreement to change the payments, a possibility that the contracts provided for by expressly qualifying the obligation to make repayments by the possibility of 'other repayment arrangements or variations agreed between us from time to time'. It did not matter whether or not the agreement to do so might be effective as a contractual variation according to common law principles. If, in fact, arrangements or variations were agreed as to when payments were to be made then they operated for the purposes of the express contract terms.
For reasons that have been explained, beyond the fact of agreement to change the payment arrangements, the actual dealings between the customer and Sunshine at the time that the relevant fee was imposed are not relevant to whether Sunshine contravened s 24(1A). Nevertheless, as to Sunshine's contentions based upon those actual dealings, there was no evidence identified by Sunshine in its submissions that might have supported a finding that it was the indication by a customer that there was some reason why a future credit charge could not be met that was the event that, in fact, gave rise to the imposition of the fee. Rather, all the evidence to which the Court was taken showed that the event by reference to which the fee was imposed was the agreement by Sunshine to a change to the payment arrangements (generally implemented by not presenting the direct debit authority and by providing the customer with an adjusted payment schedule).
Further, the fact that the change in the payment arrangements was usually effected by Sunshine directing its agent to suspend calling on the authority to make the direct debit is irrelevant (or acceding to a request from the customer to do so) and does not alter that conclusion. What the contract contemplated and what occurred was that an amendment fee was charged by Sunshine when it agreed to change the payment arrangements provided for by the agreement. Those arrangements extended to include instances where payment was to be made by direct debit and there was agreement that Sunshine would not call on the direct debit when the credit charges were next due.
Nor was there any significance for the proper construction of the contract if it could be demonstrated (as Sunshine contended) that the Amendment Fee was in fact only imposed at a time when the customer was in default. Sunshine claimed that the procedure it followed in imposing the fee meant that by the time there was a liability to pay the fee, the customer was in default because the relevant credit charges had not been paid at the time required by the contract and, in fact, the fee was imposed for that default. The primary judge rejected that factual claim. The submissions as to those factual findings are addressed below in the section of these reasons dealing with other contentions advanced by Sunshine. However, at this point it is sufficient to note that they could not provide any answer to ASIC's case which turned not upon the circumstances at the time the Amendment Fee was imposed, but whether the fee was imposed, required and accepted on the basis of the terms of the contracts that conferred the contractual right to impose that monetary liability.
For those reasons, the primary judge was correct to find that upon a proper construction of the contracts and by reason of the evidence that the Amendment Fee had been applied to the account of the identified number of customers (and paid by the identified number of customers) when agreement was reached to change the payment arrangements under the contracts, the contraventions alleged by ASIC were established.

[85]

It was not explained why the language of s 3 supported the submission that the provisions of the Act (other than the Code) were intended to stand separately from the provisions of the Code in a way that would mean that none of the provisions of the Act (other than the Code) might apply to the legislation as a whole. The terms of s 3 are explained by the fact that the Code provisions take effect by a conferral of power upon the Commonwealth by the States. It makes clear in that context that the Code takes effect as Commonwealth law. It says nothing about whether the references to 'this Act' in the provisions of the Act mean and include the whole of the Act (that is including the Code as the Schedule).
In addition to the textual reasons that have been given concerning the language of s 5, there are at least three further matters that demonstrate the complete absence of any contextual support for Sunshine's claim.
First, there are many references within the sections of the Credit Act to 'this Act (other than the National Credit Code)': see, ss 10, 14, 15, 22, 178, 179, 324, 325, 334, 335. Each of these references would be redundant on Sunshine's case. The fact that most references within sections of the Act to 'this Act' do not include in parentheses 'other than the National Credit Code', but in the particular instances just identified those words are added, manifests a clear approach of identifying within each section of the Act (other than the Code) which provisions apply to the Credit Act (including the Code) and which provisions apply to the Credit Act (excluding the Code) and provide firm contextual support for the conclusion that s 5 does not indicate that 'this Act' means this Act (other than the provisions in the Code).
Second, there are well over 200 references to 'this Act' within the provisions of the Credit Act (excluding the Code provisions). On Sunshine's case all these provisions refer to the Credit Act excluding the Code. Sunshine's case would produce many absurd and illogical consequences as to the scope of those provisions. It would deprive ASIC of the ability to exercise the many and detailed powers conferred by the Act where the relevant conduct contravened the Code. It would deprive ASIC of responsibility for general administration of the Code and leave it with the few powers conferred upon ASIC under the Code. It would mean that the Code is enacted with very little machinery as to the administration and enforcement of its provisions.
Further, provisions in the Credit Act which apply to 'credit legislation' or 'Commonwealth credit legislation' or deploy those terms would not apply to the Code because the definition in s 5 of 'credit legislation' uses the expression 'this Act' and does not refer to the Code. Consequently, the obligation of a licensee to 'comply with the credit legislation' and to 'take reasonable steps to ensure that its representatives comply with the credit legislation' (see s 47) would not extend to compliance with the Code. The requirement of a licensee to give assistance to ASIC in relation to whether the licensee and its representatives 'are complying with the credit legislation' would not extend to complying with the Code (see s 51). ASIC's power to make a banning order could not be founded on contraventions of the Code (see s 80). ASIC's general powers of investigation 'for the due administration of the Commonwealth credit legislation' would not extend to the Code (see s 247). Nor would the search warrant provisions (see s 272B). Finally, the provision entrusting the general administration of 'this Act' to ASIC would not extend to the Code (see s 239). These examples are by no means exhaustive.
Third, Sunshine's case also produces absurd and illogical consequences for the enforcement of the provisions in the Code. The attempts by Sunshine to try and find some form of amelioration of those consequences in extremely strained readings of certain of the Code provisions should not be accepted. In short, if Sunshine's contentions were to be accepted, the very extensive powers entrusted to ASIC by the Credit Act (some of which have been mentioned in describing the absurd and illogical consequences for the Credit Act of Sunshine's construction) would not be available to ASIC when it came to the Code.
Sunshine's submission to the effect that the powers expressly entrusted by the Code to ASIC in relation to seeking penalties where there was a breach of the 'key requirements' are sufficient foundation for ASIC to seek pecuniary penalties where there has been a contravention of the Code must be rejected. Plainly, the reference to 'penalties' in those provisions is not to the imposition of pecuniary penalties. Rather, they confer an ability to impose a quite specific form of statutory penalty of the kind described in the various provisions which are limited in the circumstances to which they apply. Therefore, on Sunshine's case there would be no power to seek civil pecuniary penalties despite many Code provisions referring to civil penalties.
It was submitted that s 124 of the Code would provide a source of power to ASIC to enforce the Code. It provides:

[95]

For a body corporate a provision was added (as s 167B(2)) to the effect that the pecuniary penalty applicable to the contravention of a civil penalty provision by a body corporate was the greater of (a) an amount that was ten times the specified penalty; (b) if the benefit can be determined, the amount of the benefit multiplied by three; or (c) 10% of the annual turnover of the body corporate up to an amount equal to 2.5 million penalty units.
The Amendment Act also introduced a provision to the effect that it was not necessary to prove the state of mind of the alleged contravener in proceedings for a declaration of contravention. It also introduced a defence of mistake of fact and provisions about the evidential burden in such proceedings. There were other amendments to the provisions in Chapter 4 that were concerned with proceedings to recover pecuniary penalties.
Accordingly, the Amendment Act (a) introduced civil penalty provisions into the Code; (b) made detailed amendments to the provisions in Chapter 4 of the Credit Act concerned with proceedings to recover a pecuniary penalty; and yet (c) introduced no provisions into the Code concerning the recovery of pecuniary penalties.
Plainly, the Amendment Act contemplated that the enforcement mechanism for civil penalty provisions in the Credit Act including the Code would be provided for by Chapter 4. Many strange consequences would flow if that were not the case. These matters are further reasons why Sunshine's first jurisdictional point lacks any merit.
However, the significance of these matters for the second jurisdictional point is that before the Amendment Act there were no provisions in the Code that could give rise to civil monetary penalties, but the same provisions existed as criminal offence provisions.
Schedule 8 to the National Consumer Credit Protection (Transitional and Consequential Provisions Act 2009 (Cth) dealt with the application and transitional provisions for the Amendment Act. Those provisions established the date of 13 March 2019 for application of the new civil penalty and offence provisions introduced into the Code by the Amendment Act. Section 24(1A) of the Code was one of the provisions that took effect by operation of the Amendment Act. Before that, there was a criminal offence provision expressed in the same terms.
Therefore, it may be accepted, that the statutory authority conferred by s 166 and s 167 of the Credit Act to seek declarations and pecuniary penalties in respect of a contravention of s 24(1A) of the Code (and consequent relief for contravening s 47(1)(d) of the Credit Act) was confined to conduct that occurred on or after 13 March 2019.
It may also be accepted that the relevant statutory provisions in the Credit Act conferred jurisdiction upon this Court 'to the exclusion of ... section 39B of the Judiciary Act 1903': s 186(1). However, s 186(3) of the Credit Act provides: 'Nothing in this Division affects any other jurisdiction of any court'.
As to that 'other jurisdiction', s 21(1) of the Federal Court of Australia Act 1976 (Cth) provides:

[99]

The Federal Court Rules 2011 (Cth) require that the notice of appeal 'must state...briefly but specifically, the grounds relied on in support of the appeal': r 36.01. Difficulties may arise when litigants in person are called upon to meet the requirement: Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61 at [30]. However, the Court is entitled to expect that appeals brought by competent practitioners will meet the requirement. Regrettably, that was not the case.
The appeal brought by Sunshine advanced more than 30 grounds. It is not possible to say precisely how many grounds were advanced because of the use of sub-paragraphs to articulate separate grounds and the way in which some of the grounds were expressed.
Many of the grounds were unfocussed in the sense that they alleged error at a high level of generality. In most instances they did no more than identify a contention that had been rejected by the primary judge. Universally, the 'grounds' failed to identify the paragraphs in the reasons of the primary judge where the alleged error in reasoning was said to have occurred. In almost all cases, the grounds failed to articulate what it was said the primary judge should have found. In consequence, the grounds of appeal were little more than a list of many of the arguments that had been advanced unsuccessfully before the primary judge. They failed to engage in any real sense with the reasons for decision of the primary judge. They manifested a fundamental misunderstanding of the nature of the right of appeal from a single judge of the Court conferred by the Federal Court of Australia Act. They provided no focus for the appeal.
Appeal grounds should not include argument. Nor should they take the form of broad statements of the contentions that will be advanced on appeal. They must identify the nature of the error in the reasoning of the primary judge (pointing to where the error occurred) and state what should have been done by the primary judge, noting that the error may take the form of a failure to address a point of significance (see, for example, Cush v Dillon [2011] HCA 30; (2011) 243 CLR 298).
When it comes to factual findings, the appeal grounds should reflect the well-established principles for challenging factual findings: see the recent summary in Frigger v Trenfield (No 3) [2023] FCAFC 49 at [134]- [147], especially at [141] concerning findings based upon a conclusion as to a lack of credibility of particular witnesses. Further, if findings are not challenged on appeal, they must be accepted. It is never appropriate to proceed, as Sunshine did in the present instance, as if there had been no factual findings by the primary judge and simply seek to argue the case by reference to the evidence before the primary judge (or worse still, some aspects of that evidence).
Well drafted grounds of appeal are informed by an understanding of the reasoning pathway adopted by the primary judge. This is so for a number of reasons. It is an approach that ensures that consideration is given to whether the appeal grounds, if upheld, will provide a basis upon which the judgment or orders under appeal should be overturned. It will expose whether it is necessary for the appellant to succeed on all grounds or whether some grounds if upheld provide alternative bases upon which the appeal should be upheld. It will also expose whether the complaint goes nowhere in the overall scheme of things. Most importantly, it will inform what should be the subject of a separate appeal ground. Usually, there should be a separate appeal ground directed to each alleged error in the reasoning pathway, rather than rolling up issues in the same ground. It will also expose whether the ground is expressed with too much generality to enable the appeal court to understand the flaw in the logic of reasoning that is alleged, or to specifically direct attention to the point in the reasoning that is said to be infected with error.
The formulation of an appeal ground is not like the formulation of a pleading. Grounds of appeal should not be elaborate nor should they set out matters at great length: Sansom v Sansom [1956] 1 WLR 945. The aim should be greater clarity rather than greater particularity: Maddren v Bell [1998] WASCA 215. Not every grievance will constitute a ground of appeal and findings as to subordinate or basic facts will rarely found a ground of appeal: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; (2002) 234 FCR 549 at [4]. Instead, it is necessary to focus upon intermediate findings or conclusions that are said to be in error (including references in the grounds to all the paragraphs that are challenged by the ground) and then, subsequently, make submissions in support of the ground by reference to the underlying facts and findings.
Appeal grounds should also be prepared with a keen eye to conformance with the duty to exercise an independent judgment in regard to the arguments to be presented: Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd [2000] WASCA 102 at [13]; and Dyczynski v Gibson [2020] FCAFC 120; (2020) 280 FCR 583 at [215]- [218].
Sometimes, well prepared submissions in support of an appeal will remedy the burdens of a deficient notice of appeal by exposing the matters that should have been expressed in the grounds (but were not). Such a course is not to be encouraged because it poses difficulties for understanding whether there should be case management directions as to the conduct of the appeal. It is also likely to result in unfairness to any party opposing the appeal.
In the present case, many of the matters alluded to in the appeal grounds were not addressed at all in the submissions or received only cursory mention in written submissions without being developed orally. Other aspects of the submissions bore no connection to any of the grounds. Difficulties were posed for the conduct of the appeal and the preparation of these reasons by the defective manner in which the appeal grounds were prepared. Those difficulties were most manifest when it came to those aspects of the appeal which sought to challenge the factual findings made by the primary judge and even more so the findings as to credibility. Those findings by the primary judge rested upon the consideration of documents, inferences drawn from those documents as well as, in certain respects, conclusions to the effect that witnesses for Sunshine were not credible because they gave a 'schooled' account which did not reflect the actual practices of Sunshine in dealing with its customers. As has been mentioned, impugned findings of that kind need to be challenged in accordance with established principles for challenging factual findings. Otherwise, as has been mentioned, the appeal must be conducted on the basis of the findings that have been made by the primary judge.
The primary judge also found that there had been admissions by Sunshine that were consistent with his findings on certain key aspects.
The appeal took the form of re-arguing the points that had been put to the primary judge in a broad brush way without regard to any real analysis of the merits of the reasoning of the primary judge, the pathway by which conclusions adverse to Sunshine had been reached, the precise findings it was alleged that the primary judge should have made or the evidence that was relevant to those findings.
Put succinctly, having regard to the way in which the findings were reached by the primary judge there was an egregious failure to discharge the responsibilities of counsel to confine the case to the real issues and, in an appeal, to state the grounds 'briefly but specifically'.
Perhaps understandably given their form, the written submissions in support of the appeal barely referred to the grounds. Instead, they were ordered around six topics with the heading for each topic being footnoted to various grounds. Under each topic arguments were advanced mostly without regard to the reasoning of the primary judge. The submissions were arranged as follows:

[107]

The submissions advanced as to topic (3) concerned the factual circumstances that occurred when the Amendment Fee was actually imposed upon individual customers. For reasons that have been given, the dealings between the parties at the time the fee was imposed as relied upon by Sunshine were not relevant to a determination as to whether there had been contraventions of s 24(1A) of the Code. The primary judge was correct to find that the fee was payable and paid in respect of a monetary liability that cannot be imposed consistently with the Code because that liability was imposed on the basis of the contract terms which allowed for an Amendment Fee to be charged and not 'in the event of' a default in payment under the contracts entered into by Sunshine with its customers.
The submissions for Sunshine as to this topic were made at a level of generality that was said to pertain to each customer the subject of detailed evidence before the primary judge (being some 66 in number, 61 of which were contracts made and performed in the relevant period), with the Court being taken to examples on the basis that the same analysis applied to all. Accordingly, we address them on that basis.
Sunshine's submissions sought to advance a different characterisation of the events that occurred when an Amendment Fee was charged by Sunshine to that which was found by the primary judge. As has been explained, an appeal of that kind would have to allege error as to those findings and identify the nature of the error. As that was not done it is not possible in a meaningful way to address the submissions advanced for Sunshine which took the form of submissions that might have been advanced to the primary judge. That is to say, they did not seek to engage with the reasons of the primary judge and the factual findings that had been made. Unless those finding are demonstrated to be in error, they are the foundation upon which this Court deals with an appeal.
Nevertheless, speaking broadly, the contentions advanced were to the effect that, on each occasion when an Amendment Fee was imposed by Sunshine, the customer had communicated an inability to make a future payment or payments of a credit charge under the contract and had made a request that Sunshine not call on the customer's direct debit request. In consequence, so it was submitted, there was a default in payment under the contract at the time the Amendment Fee was imposed and the customer, therefore, had defaulted.
It was also said that although the fee was debited to the account of the customer, it was not charged by Sunshine until there had been a default. That is to say, by the time the Amendment Fee was charged (and paid in those instances where it was paid), the customer had not paid the credit charges on the due date.
It was also said, for various reasons, that the agreement reached between Sunshine and its customer was that it would defer calling on the direct debit authority. This, it was said, effected no change to the obligations under the contract as to when the credit charges were due. Further, it was said that there was no variation of the contract by these dealings. One reason advanced for that contention was that it was said that there was no consideration moving from the customer. Another reason was that it was said that there was no change to the final repayment dates.
We are not persuaded that any of these matters either separately or together, meant that the Amendment Fee was payable, in fact, in the event of a default in payment under the contracts. There are two main reasons for that conclusion. First, as we have explained, in order to come within the statutory language in s 31A of the Code which refers to 'a fee or charge that is payable in the event of default in payment under the contract', the fee or charge must be payable in consequence of a default in payment under the contract. The contracts entered into by Sunshine imposed a fee that was payable when there was a deferment of the time for payment. It was not a fee that was to be imposed on the basis that there had been a default in payment. Sunshine did not dispute that the fee was imposed by reference to the contract. Therefore, irrespective of what happened in fact when the Amendment Fee was imposed, it could only be imposed on the basis of an agreement to amend. That was the character of the fee and the monetary liability to pay it was sourced in the terms of the contract.
Second, even if the events that occurred at the time the Amendment Fee was charged to the individual customer were relevant, Sunshine did not point to any evidence to support a finding that the Amendment Fee was imposed because there had been default in payment. At its highest, the evidence referred to by Sunshine might be relied upon to show that there was expected to be future default at the time the Amendment Fee was imposed (by charging it to the customer's account) - assuming there was no agreement to defer the time for payment. The evidence shows that Sunshine added the Amendment Fee when it agreed to defer the time for payment of credit charges. The fact that the discussion with the customer concerned the deferment of a resort to the direct debit authority did not mean that there was no agreement to amend or vary. The imposition of the Amendment Fee occurred because there had been a discussion with the customer in which a Sunshine officer agreed to defer payment.
Further, the fact that there was no change to the date when the loan had to be repaid did not mean that there was no amendment to the agreed terms.
Sunshine's case can be tested in the following way. If indeed there was a default each time that that an Amendment Fee was charged and it was the default that gave rise to the liability then why did Sunshine not charge a default fee? On Sunshine's case that was the fee that was payable. A further difficulty with approaching the matter in that way was the terms of the Information Statement and the related express provision in the contracts in relation to amendment. The contracts were being performed in circumstances where Sunshine had told its customers that if there were problems with making a payment they should contact Sunshine and seek an amendment. The Information Statement also referred to the possibility of amendment being directed by a court or tribunal. Both those possibilities were reflected in the terms of the contract concerning amendment.
As would be expected in those circumstances, in the examples relied upon by Sunshine in its submissions as to the factual findings, the record of dealings with the customer refer, in substance, to agreement to change the payment arrangements and the charging of an amendment fee because of that agreement. Further, the evidence to which the Court was taken was to the effect that Sunshine would then send a revised payment schedule with adjusted credit charges to require repayment within the loan term.
As we have explained, the relevant provision in s 31A(1)(c) of the Code allowed a contract to impose a fee or charge that is payable in the event of a default in payment. An indication that a customer might not be able to pay an amount when due is not a default in payment for the purposes of the statute. All the more so when the indication is given, not for the purpose of defaulting in payment, but for the purpose of reaching agreement with Sunshine (as contemplated by the terms of the contract) for the time for payment to be deferred. There is nothing to be gained in considering whether the conduct of the customer might amount to some form of anticipatory breach or repudiation of the contract that may have justified termination if the contract was governed solely by common law principles. The contracts were highly regulated. The statutory language is protective of those who enter into small amount credit contracts. The terms of the contracts had their own provisions that allowed for agreement between the parties. If agreement was reached it operated by reference to those contract terms. There was no need to call upon common law principle beyond the interpretation of the contract terms.
When pressed as to the deficiencies in the way the case was presented on appeal, Sunshine produced a schedule which was said to support a submission that the findings in six identified paragraphs of the reasons were 'not supported by the evidence'. The schedule did no more than put forward a 'selection of exhibits and log entries which provide[d] examples of evidence contrary to findings of fact by the learned Primary Judge'. Precisely what the Court was to make of the list was unclear. What was pellucid was that there was no attempt to deal with the evidence in any comprehensive way.
Otherwise, it is not for this Court to try and conjure out of the unfocussed submissions some form of possible articulation of alleged factual error that might correspond to a proper ground.
Significantly, no challenge was developed to many of the key factual findings by the primary judge. They included the following:

[108]

Despite [Sunshine's] attempts to characterise the charging of an Amendment Fee as the charging of a fee payable on default, this was not borne out by the evidence. In respect of all of the 66 example customers ..., the Amendment Fee was charged to the customer's account on the same date that the repayment was agreed to be deferred. As ASIC submitted, in relation to 64 customers, the payment of the fee occurred prior to the date the original repayment was due. On that basis, there was no warrant for requiring the payment of a fee upon default as none had then occurred. In relation to the remaining two borrowers, being Customer 39 ... and Customer 26 ... the Amendment Fee was charged on the date that the payment was due.

(2) at PJ[259]:

The above conclusion that Sunshine ... charged the Amendment Fee where it and the customer had reached an agreement to vary the repayment terms is consistent with the manner in which Sunshine ... charged default fees. In the case of 33 of the 66 customers represented by the 66 loan files in evidence, a 'Default fee' was charged to the account where the customer failed to make a scheduled repayment without having reached an earlier agreement with Sunshine ... to defer it. In ASIC's opening outline of submissions, it attached a schedule concerning the payment of 'Default fees' by customers. It accurately identified for each customer the date in the loan statement on which such a fee was charged, the original date of repayment that was missed, what (if anything) the customer transaction logs recorded about that event and, finally, whether any correspondence was sent to the customer about the default.

(3) at PJ[260]-[263], his Honour dealt with examples of the circumstances in which default fees were charged by way of contrast to the way in which the Amendment Fee was charged, concluding that the latter 'was required and paid in entirely different circumstances'; and

(4) at PJ[264], the primary judge relied upon the way Sunshine's own staff recorded matters in the 'customer transaction logs' and an express statement in the version of the credit contract used before the relevant period that the 'Rescheduling/amendment fee' was chargeable '[w]hen repayment/s are rescheduled, payable following rescheduling'.

[111]

The submissions advanced in support of topic (4) in Sunshine's written submissions were to the effect that the primary judge should have found that ASIC did not adduce evidence to support a finding that on any occasion where a customer had asked Sunshine not to rely upon a direct debit authority when the next credit charge was due had reached a 'consensus ad idem to vary the terms of the Financial Table of that customer's [contract]'. For reasons that have been given, ASIC did not need to establish that the Amendment Fee was imposed in circumstances where there was a variation of the contract terms in accordance with principles of contract law.
The whole of the matters raised in support of topic (4) proceeded upon the false premise that it was necessary for ASIC to demonstrate a variation of each contract in accordance with contract law principles.
The written submissions also sought to rely upon evidence of witnesses in respect of whom the primary judge had made adverse credit findings without seeking to challenge those findings in accordance with applicable principle.
To the extent that submissions were made to the effect that the primary judge failed to observe what was required by Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 or otherwise properly apply the law as to the onus and standard of proof, those submissions paid no regard to the detailed consideration of those matters by the primary judge at PJ[128]-[138]. We can see no respect in which that reasoning was in error.
It was suggested that ASIC's failure to call any customer to give evidence and to simply adduce evidence of Sunshine's own records in some unspecified way meant that those records were an insufficient foundation for the primary judge to reach conclusions as to what occurred. In circumstances where those records included a form of running sheet as to the dealings with each customer and there was evidence of the practice of Sunshine's employees in making contemporaneous records of communications with customers (many of which were verbatim records of written communications through a customer 'portal') a general submission of that kind provided no foundation for a challenge to the factual findings of the primary judge.
Finally, the primary judge was criticised for extrapolating from the evidence concerning the individual customers to conclusions in respect of all customers. There could be no issue as to that approach when it came to the contracts because the five versions used were in evidence. As to the nature of the dealings with individual customers, the evidence was that the customers were selected by ASIC in a randomised way. They were sufficient evidence of a consistent practice by Sunshine. Again, there was no real attempt to impugn the reasoning of the primary judge as to why his findings could be extrapolated to other customers. Finally, the objection to extrapolation was really tied up with Sunshine's ineffective attempt to contend that ASIC had to demonstrate that there had been a variation of the terms of the Financial Table in accordance with common law principles. For reasons that have been given, that submission should not be accepted.
In its written submissions in reply, Sunshine made a submission that sought to raise a number of points that had not been addressed in its principal written submissions. The submission was expressed as follows:

[116]

It appeared from the course of the evidence given by [Sunshine's] witnesses that they had been well schooled in what to say under cross-examination. Even though there was no doubt from most of the customer transaction logs that the discussions between the customer and the officer of Sunshine ... was about the deferral of a scheduled payment, each of the witnesses stubbornly clung to the notion that the request was merely for a 'stop' to be placed on the next direct debit.

(2) As to evidence given by Mr Simmons (PJ [292]-[293]:

In the course of his oral evidence, Mr Simmons maintained the somewhat disingenuous claim that where the customer service officer recorded that a customer had requested a deferral of a scheduled payment, that amounted merely to a request for Sunshine ... not to effect a direct debit on their bank account. The intended effect of this construction of the conversation between the customer and Sunshine ... appeared to be that all the customer asked was that the direct debit be stopped, such that there would be an immediate default in repaying the loan when the scheduled date for the direct debit to occur passed without the debit taking place.

Mr Simmons clung firmly to that impossible construction of the customer transaction logs. He was a not unintelligent person and appeared to be able to read and consider the words recorded in the logs whether they were texts, emails, online communications or records of telephone calls. I do not accept that he sought to give his evidence honestly in this respect.

(3) As to evidence given by Mr Bennetts (PJ[294], [301]):

Mr Bennetts, the Operations Manager and Head of Assessments at Sunshine ..., also gave evidence in a manner which suggested that he had been schooled to deny that any agreement existed to amend the terms of the loan and to assert that the customer would be in default if they requested a deferral of a payment.

The effect of Mr Bennetts' evidence was that Sunshine ... and the customers did in fact come to agreements from time to time to vary their original agreement. Those variations could, in the circumstances, only mean that the customer was not obliged to make the originally scheduled payment but would, instead, make a different payment. Sunshine Loans gave effect to that agreement by putting a hold on the making of a direct debit from the customer's account. It is, with respect, nonsense to think that there was no amendment to the SACC in such circumstances. On no sensible view could it be accepted that, despite the agreement, the customer would be in default if they did not make the payments in accordance with the originally scheduled arrangement.

(4) As to evidence given by Mr Powe (PJ[302]-[303]):

In a similar manner, Mr Powe adhered to the contention that despite the obvious agreement to vary the loan contract between Sunshine ... and its customers for which the Amendment Fee was paid, no such agreement existed. He, too, gave evidence in the manner of someone who had been schooled to advance a particular theory.

Mr Powe accepted that, from time to time, customers who were unable [to] meet their originally agreed repayments would contact Sunshine ... to see if they could come to some arrangement. He also agreed that Sunshine Loans was able to agree with a customer to defer a scheduled repayment. However, in the maintenance of the theory which he sought to propound, his evidence became preposterous. He asserted that an agreement between Sunshine ... and a customer that a repayment be deferred to a date other than that identified in the original payment schedule did not amount to any change to the terms of the original contract.

[123]

For reasons we have given, subject to one issue as to the form of declaratory relief (addressed below), Sunshine's appeal must be dismissed.
As has been explained, the conduct in respect of which ASIC sought declaratory relief was conduct of the same kind that occurred over the entire period between 1 July 2016 and 2 November 2020. Sunshine did not suggest that the general nature of its dealings with its customers in relation to charging the Amendment Fee of $35 had changed in any material respect over that time. It did not suggest that the analysis to be applied to the way Sunshine had given effect to the different versions of the contract that it entered into with its customers should be undertaken in a different way depending upon differences between the term of the contracts.
At its highest, Sunshine's contentions were to the effect that, in order to succeed, ASIC had to prove what had taken place in the dealings between Sunshine and each of its customers in relation to the Amendment Fee. Those contentions were advanced on the premise that those dealings were relevant to reaching a conclusion as to whether Sunshine had contravened s 24(1A) when it came to the Amendment Fee. For reasons that have been given, they were not. Rather, the decision of the primary judge rested upon a consideration of the terms of the contracts and the fact that the Amendment Fees had been charged by Sunshine by reference to those contracts on each occasion.
Therefore, in circumstances where there was no issue as to the number of occasions that the fees were agreed, charged and paid, it was appropriate for declarations to be granted in terms that covered all those occasions.
However, as has also been explained, the foundation for the declarations for conduct before 13 March 2019 and on and after that date were different. For conduct before that date, the declarations were made on the basis that the conduct was, at the time, an offence but that it was appropriate to grant declaratory relief because, amongst other things, ASIC had made clear that it did not propose to bring criminal proceedings (and in exercise of the general civil authority of the Court to grant declaratory relief).
For conduct after 13 March 2019, the declarations were made pursuant to s 166 of the Credit Act which states: