Australian Securities and Investments Commission v Rent 2 Own Cars Australia Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 11 September 2020
• Neutral Citation: [2020] FCA 1312
• Date: 11 September 2020

Federal Court of Australia

Australian Securities and Investments Commission v Rent 2 Own Cars Australia Pty Ltd [2020] FCA 1312

File number(s):	QUD 609 of 2018
Judgment of:	GREENWOOD J
Date of judgment:	11 September 2020
Catchwords:	CONSUMER LAW – consideration of whether the National Consumer Credit Protection Act 2009 (Cth) (the “NCCP Act”) and the National Credit Code (the “Code”), Schedule 1 to the NCCP Act, apply to 232 contracts for the provision of credit in the form of hire purchase style contracts – consideration of whether the contracts are credit contracts – consideration of the elements of provision of credit – consideration of the construction to be attributed to each of the subsections of s 9 in the context of the statutory purpose ; CONSUMER LAW – consideration of the following provisions of the NCCP Act: ss 3, 5, 7, 8, 29, 47, 64, 65, 71, 166, 168, 169, 177, 187 – consideration of the following provisions of the Code: ss 3, 4, 5, 6, 9, 17, 23, 32A, 32B, 111, 112, 113, 116, 122, 124, 204 ; CONSUMER LAW – consideration of whether conduct said to engage contraventions of the Code also engages contraventions of the Australian Securities and Investments Act 2001 (Cth) (the “ASIC Act”) – consideration of ss 12DA(1), 12DB(1)(a), 12DB(1)(g), 12BAA(7), 12BAB(1) of the ASIC Act – consideration of the terms “standard, quality, value or grade” in s 12DB(1)(a) of the ASIC Act ; STATUTORY CONSTRUCTION – consideration of the principles to be applied – consideration of provisions of the NCCP Act and the Code – consideration of whether the directors of the respondent corporation were knowingly concerned in the contraventions of the Code by the respondent corporation and whether they were knowingly concerned in the respondent corporation’s contraventions of the ASIC Act – consideration of s 12GBA(1)(e) of that Act – consideration of the principles derived from Yorke v Lucas (1985) 158 CLR 661 – consideration of the state of knowledge that must be shown to exist in the relevant person before such a person is knowingly concerned in the contraventions of another – consideration of authorities of intermediate courts of appeal applying principles of accessorial liability under the statutory text in issue
Legislation:	Australian Securities and Investments Commission Act 2001 (Cth) ss 12DA(1), 12DB(1)(a), 12DB(1)(g), 12BAA(7), 12BAB(1) Corporations Act 2001 (Cth) s 79 National Consumer Credit Protection Act 2009 (Cth) ss 3, 5, 7, 8, 29, 47, 64, 65, 71, 166, 168, 169, 177, 187 National Credit Code ss3, 4, 5, 6, 9, 17, 23, 32A, 32B, 111, 112, 113, 116, 122, 124, 204 Trade Practices Act 1974 (Cth) Australian Securities and Investments Commission Regulations 2001 (Cth) reg 2B(1)
Cases cited:	Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd (1920) 28 CLR 129 Application by Isentia Pty Limited [2020] ACopyT 2 Australian Competition & Consumer Commission v IMB Group Pty Ltd [2003] FCAFC 17 Australian Competition and Consumer Commission v TF Woollam & Son Pty Ltd (2011) 196 FCR 212 Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) (2015) 235 FCR 181 Body Bronze International Pty Ltd v Fehcorp Pty Ltd (2011) 34 VR 536 CH Real Estate Pty Ltd v Jainran Pty Ltd; Boyana Pty Ltd v Jainran Pty Ltd [2010] NSWCA 37 Cooper Brookes (Wollongong) Proprietary Limited v Federal Commissioner of Taxation (1981) 147 CLR 297 Downey & Anor v Carlson Hotels Asia Pacific P/L [2005] QCA 199 Ducret v Chaudhary’s Oriental Carpet Palace Pty Ltd (1987) 76 ALR 183 Giorgianni v The Queen (1985) 156 CLR 473 Given v C V Holland (Holdings) Pty Ltd (1977) 15 ALR 439 Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435 Hamilton v Whitehead (1988) 166 CLR 121 Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1 Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1 Milorad Trkulja (aka Michael Trkulja) v Google LLC (2018) 263 CLR 149 Pereira v Director of Public Prosecutions (1988) 82 ALR 217 Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1 Roper v Taylor’s Central Garages (Exeter) Ltd [1951] 2 T.L.R. 284 Rural Press Limited v Australian Competition and Consumer Commission (2003) 216 CLR 53 Thompson v Riley McKay Pty Ltd (No 2) (1980) 31 ALR 507 Wheeler Grace & Pierucci Pty Ltd v Wright (1989) 16 IPR 189 Yorke v Lucas (1985) 158 CLR 661
Division:	General Division
Registry:	Queensland
National Practice Area:	Commercial and Corporations
Sub‑area:	Regulator and Consumer Protection
Number of paragraphs:	438
Date of last submission/s:	1 August 2019
Date of hearing:	29 July 2019 – 1 August 2019
Counsel for the Applicant:	S J Cleary and S E Seefeld
Solicitor for the Applicant:	H Copley of ASIC
Counsel for the First and Third Respondents:	S J Forrest
Solicitor for the First and Third Respondents:	Behlan Murakami Grant ILP

ORDERS

		QUD 609 of 2018
BETWEEN:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Applicant
AND:	RENT 2 OWN CARS AUSTRALIA PTY LTD ACN 082 691 085 First Respondent ; TIMOTHY JAMES ROBERTS Second Respondent ; PAUL ANTHONY GREEN Third Respondent

order made by:	GREENWOOD J
DATE OF ORDER:	11 SEPTEMBER 2020

THE COURT ORDERS THAT:

1. The Applicant is directed to submit to the Court within 14 days proposed forms of relief to be granted having regard to the reasons for judgment published today and in particular taking into account the matters set out at [436] of the reasons for judgment.

2. The parties are directed to conduct discussions with a view to submitting to the Court within 14 days proposed directions for undertaking such steps as may be necessary for the hearing of the separate question of penalty.

3. As to the question of the period of the restraint the subject of an injunction as contemplated by point 5 of the matters at [436], the parties are directed to put on such further submissions (if any) within 14 days.

4. The costs of and incidental to the proceeding are reserved.

5. Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), r 1.32 and r 1.36 of the Federal Court Rules 2011, these Orders and Reasons for Judgment in support of these Orders made and published in Court today are, additionally, dispatched to the parties from chambers.

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

REASONS FOR JUDGMENT

GREENWOOD J

Background

1. These proceedings are concerned with an application by the Australian Securities and Investments Commission (“ASIC”) for a range of relief in relation to contended conduct on the part of the corporate respondent Rent 2 Own Cars Australia Pty Ltd (“R2O”) said to involve contraventions of ss 32A,...