Australian Securities and Investments Commission v General Commercial Group Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 24 January 2023
• Neutral Citation: [2023] FCA 24
• Date: 24 January 2023

Federal Court of Australia

Australian Securities and Investments Commission v General Commercial Group Pty Ltd [2023] FCA 24

File number(s):	QUD 242 of 2021
Judgment of:	DOWNES J
Date of judgment:	24 January 2023
Catchwords:	CONSUMER LAW – admitted contraventions of s 47(1)(a) and s 47(1)(m) National Consumer Credit Protection Act 2009 (Cth) – where failure to comply with obligations imposed by reg 11A National Consumer Credit Protection Regulations 2010 (Cth) – where complaints made to the Australian Financial Complaints Authority about corporate respondents by consumers – where respondents failed to take reasonable steps to cooperate including refusing to provide documents – where failure to do all things necessary to ensure credit activities authorised by Australian Credit Licence were engaged in efficiently, honestly and fairly – where directors were involved in contraventions by corporate respondents – where declarations, pecuniary penalties and injunctions sought against each respondent by consent – proposed declarations, pecuniary penalties and injunctive relief ordered with minor modifications
Legislation:	Fair Work Act 2009 (Cth) s 546 National Consumer Credit Protection Act 2009 (Cth) ss 5(1), 6, 47(1)(a), 47(1)(m), 47(4), 166, 167, 167A, 167B, 169, 177, Pt 2.2 Trade Practices Act 1974 (Cth) National Consumer Credit Protection Regulations 2010 (Cth) reg 11A
Cases cited:	Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599; [2022] HCA 13 Australian Securities and Investments Commission v Commonwealth Bank of Australia [2020] FCA 1543 Australian Securities and Investments Commission v Financial Circle Pty Ltd (2018) 131 ACSR 484; [2018] FCA 1644 Australian Securities and Investments Commission v GoGetta Equipment Funding Pty Ltd [2021] FCA 420 Australian Securities and Investments Commission v National Australia Bank Limited [2020] FCA 1494 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 Trade Practices Commission v CSR Ltd [1990] FCA 521; (1991) ATPR 41-076 Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 284 FCR 24; [2021] FCAFC 49
Division:	General Division
Registry:	Queensland
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	107
Date of hearing:	6 December 2022
Counsel for the Applicant:	Mr S Seefeld
Solicitor for the Applicant:	Australian Securities and Investments Commission
Solicitor for the Respondents:	Mr J F Brady of John F Brady, Solicitor

ORDERS

		QUD 242 of 2021
BETWEEN:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Applicant
AND:	GENERAL COMMERCIAL GROUP PTY LTD First Respondent ; EDEN CAPITAL (AUSTRALIA) PTY LTD Second Respondent ; DALE BRENDAN HEREMAIA (and others named in the Schedule) Third Respondent

order made by:	DOWNES J
DATE OF ORDER:	24 january 2023

THE COURT DECLARES THAT:

1. The first respondent contravened:

   1. section 47(1)(m) of the National Consumer Credit Protection Act 2009 (Cth) (the Credit Act) by reason of a contravention of its obligation under reg 11A(2) of the National Consumer Credit Protection Regulations 2010 (Cth) (the Credit Regulations) from 6 April 2019 to take reasonable steps to cooperate with the Australian Financial Complaints Authority (AFCA) with respect to AFCA complaint number 673708, being the complaint to AFCA by Mr Michael and Mrs Renee Ashton of 14 October 2019;

   2. section 47(1)(m) of the Credit Act by reason of a contravention of its obligation under reg 11A(2) of the Credit Regulations from 6 April 2019 to take reasonable steps to cooperate with AFCA with respect to AFCA complaint number 627350, being the complaint to AFCA by Ms Aroha Webby and Mr Curtis Pokai on or around 13 March 2019;

   3. section 47(1)(a) of the Credit Act by breaching its obligation to do all things necessary to ensure that the credit activities authorised by its Australian Credit Licence were engaged in efficiently, honestly and fairly, through its conduct in:

      1. attempting to rely on the settlement agreement dated 29 July 2019 between the second respondent and Mr and Mrs Ashton in order to claim to AFCA that AFCA complaint number 673708 had been resolved and was therefore outside of AFCA’s jurisdiction;

      2. threatening Mr and Mrs Ashton with legal proceedings unless they withdrew AFCA complaint number 673708; and

      3. commencing proceedings in the Queensland Civil and Administrative Tribunal, through its agent Miravo Pty Ltd, against Mr and Mrs Ashton, seeking damages alleged to have occurred as a consequence of AFCA complaint number 673708.

2. The second respondent contravened:

   1. section 47(1)(m) of the Credit Act by reason of a contravention of its obligation under reg 11A(2) of the Credit Regulations from 6 April 2019 to take reasonable steps to cooperate with AFCA with respect to AFCA complaint number 613517, being the complaint to AFCA by Mr and Mrs Ashton of 9 January 2019;

   2. section 47(1)(m) of the Credit Act by reason of a contravention of its obligation under reg 11A(2) of the Credit Regulations from 6 April 2019 to take reasonable steps to cooperate with AFCA with respect to AFCA complaint number 626243, being the complaint by Ms Webby and Mr Pokai initially made to the Credit and Investments Ombudsman (reference number 18/4337) and then transferred to AFCA in or around December 2018;

   3. section 47(1)(a) of the Credit Act by breaching its obligation to do all things necessary to ensure that the credit activities authorised by its Australian Credit Licence were engaged in efficiently, honestly and fairly, through its conduct in:

      1. entering into the settlement agreement with Mr and Mrs Ashton on 29 July 2019 in order to resolve AFCA complaint number 613517; and

      2. notwithstanding that settlement agreement, subsequently commencing proceedings against Mr and Mrs Ashton in the Queensland Civil and Administrative Tribunal, through its agent Miravo Pty Ltd, seeking damages alleged to have occurred as a consequence of AFCA complaint number 613517.

3. The third respondent contravened s 47(1)(a) and s 47(1)(m) of the Credit Act by reason of his involvement in the contraventions of those sections by the first respondent.

4. The fourth respondent contravened s 47(1)(a) and s 47(1)(m) of the Credit Act by reason of his involvement in the contraventions of those sections by the second respondent.

THE COURT ORDERS THAT:

1. Pursuant to s 167 of the Credit Act, the first respondent pay a pecuniary penalty in respect of the contraventions in declaration 1 in the amount of $50,000.

2. Pursuant to s 167 of the ...