Australian Securities and Investments Commission v BHF Solutions Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 27 June 2022
• Neutral Citation: [2022] FCAFC 108
• Date: 27 June 2022

Federal Court of Australia

Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2022] FCAFC 108

Appeal from:	; (2021) 153 ACSR 469
File number:	NSD 716 of 2021
Judgment of:	BESANKO, LEE AND O'BRYAN JJ
Date of judgment:	27 June 2022
Catchwords:	CONSUMER LAW – consumer credit – alleged contraventions of the National Consumer Credit Protection Act 2009 (Cth) (Act) and the National Credit Code in Sch 1 of the Act – prohibition on engaging in credit activity without an Australian credit licence – where second respondent provided loan application services to applicants for credit and first respondent provided loans to successful applicants for credit – whether charges imposed by second respondent for “services” were charges for providing credit for the purposes of the exemption in s 6(5) of the Code – whether second respondent was an agent of the first respondent ; STATUTORY INTERPRETATION – interpretation of the phrase “charge … for providing the credit” in ss 5(1)(c) and 6(5) of the National Credit Code – meaning of “credit contract” in s 4 of the Code – extended definition of contract in s 204(1) of the Code
Legislation:	Acts Interpretation Act 1901 (Cth) s 15AA Consumer Credit Legislation Amendment (Enhancements) Act 2012 (Cth) Evidence Act 1995 (Cth) s 191 National Consumer Credit Protection Act 2009 (Cth) ss 3, 5, 6, 7, 8, 9, 29, 35, 166, 175D National Consumer Credit Protection Act 2009 (Cth) Sch 1 (National Credit Code) ss 3, 4, 5, 6, 13, 204 National Consumer Credit Protection Regulations 2010 (Cth) reg 51 Explanatory Memorandum, National Consumer Credit Protection Bill 2009 (Cth) Revised Explanatory Memorandum, Consumer Credit Legislation Amendment (Enhancements) Bill 2012 (Cth) Consumer Credit (Queensland) Act 1994 (Qld) (repealed) Consumer Credit (Queensland) Amendment Act 2001 (Qld) Uniform Consumer Credit Code (repealed) ss 7(1), 7(3)
Cases cited:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 AON Risk Services Australia Ltd v Lumley General Insurance Ltd [2005] FCA 133 Appleyard v Westpac Banking Corporation [2017] QCA 316 Australian Securities and Investments Commission v Fast Access Finance Pty Ltd [2015] FCA 1055 Australian Securities and Investments Commission v Teleloans Pty Ltd (2015) 234 FCR 261 Bahadori v Permanent Mortgages Pty Ltd (2008) 72 NSWLR 44 Bendigo and Adelaide Bank Limited v Brackenridge [2020] SASC 114 Bull v AG for New South Wales (1913) 17 CLR 370 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151 Doyles Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) [2021] NSWCA 246 Erikson v Carr (1945) 46 SR (NSW) 9 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 FV v The Queen [2006] NSWCCA 237 Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co (1958) 100 CLR 644 Kelly v The Queen (2004) 218 CLR 216 Kwik Finance (Sydney) Pty Ltd v Walker [2014] NSWCA 73 Lyford v Commonwealth Bank of Australia (1995) 130 ALR 267 Minister for the Environment, Heritage & the Arts v PGP Developments Pty Ltd (2010) 183 FCR 10 O’Sullivan v Farrer (1989) 168 CLR 210 Petersen v Moloney (1951) 84 CLR 91 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Khazaal (2012) 246 CLR 601 Secretary, Department of Health & Ageing v Prime Nature Prize Pty Ltd (in liq) [2010] FCA 597 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 Taheri v Vitek (2014) 87 NSWLR 403 Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389 Walker v Consumer, Trader and Tenancy Tribunal of New South Wales [2013] NSWSC 1432 Webb Distributors (Aust) Pty Ltd v Victoria (1993) 179 CLR 15 Wentworth v New South Wales Bar Association (1992) 176 CLR 239
Division:
Registry:
National Practice Area:
Sub-area:
Number of paragraphs:	218
Date of hearing:	23 November 2021
Counsel for the Appellant:	Mr G Kennett SC with Ms M Allars SC, Ms C Winnett and Ms C Trahanas
Solicitor for the Appellant:	Australian Securities and Investments Commission
Counsel for the First Respondent:	Mr R McHugh SC with Ms D Forrester
Solicitor for the First Respondent:	Piper Alderman
Counsel for the Second Respondent:	Mr A Pomerenke QC with Mr P Travis
Solicitor for the Second Respondent:	Elliott May Lawyers

ORDERS

		NSD 716 of 2021
BETWEEN:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Appellant
AND:	BHF SOLUTIONS PTY LTD ACN 631 775 123 First Respondent ; CIGNO PTY LTD ACN 612 373 734 Second Respondent

order made by:	BESANKO, LEE AND O'BRYAN JJ
DATE OF ORDER:	27 JUNE 2022

THE COURT ORDERS THAT:

1. The appeal be allowed with costs.

2. The orders made on 23 June 2021 by the trial judge in Federal Court of Australia proceedings NSD 1088 of 2020 be set aside.

3. The matter be remitted to the trial judge for determination of the applicant’s allegations against the second respondent and the determination of relief as against each respondent (including costs).

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

REASONS FOR JUDGMENT

BESANKO J:

1. I have had the considerable advantage of reading the reasons for judgment of O’Bryan J. I agree with his Honour’s reasons and the orders which he proposes. There is nothing I wish to add.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Besanko.

Associate:

Dated: 27 June 2022

REASONS FOR JUDGMENT

LEE J:

2. I have had the considerable benefit of reading the reasons of O’Bryan J, with which I generally agree and which set out all the relevant facts and issues on the appeal. I adopt the abbreviations used in those reasons.

3. The determinative issue is whether the primary judge erred in his assessment of the applicability or otherwise of s 6(5) of the NCCP Act in circumstances where it was contended that the only charge for providing the credit under the Loan Agreements is the BHFS fee (and notwithstanding the existence of the Cigno fees). This involves the narrow question of the meaning to be given to the conception identified by the statutory words: “charge that is or may be made for providing the credit” under the continuing credit contract.

4. It seems to me that a “charge that is or may be made for providing the credit” identifies what it actually is that the consumer pays or promises to pay in order to obtain a provision of credit. Both textually and contextually, ss 5(1)(c) and 6(5) refer to what creates and effectuates the legal...