Australian Securities and Investments Commission v Fast Access Finance Pty Ltd

The case of Australian Securities and Investments Commission v Fast Access Finance Pty Ltd involved the Australian Securities and Investments Commission (ASIC) bringing proceedings against Fast Access Finance Pty Ltd (FAF) and other entities for alleged contraventions of the statutory regime under the National Consumer Credit Protection Act 2009 (Cth) and the National Credit Code. ASIC alleged that the entities engaged in credit activities without holding the necessary Australian credit licence, thereby contravening the statutory prohibition on providing credit without such a licence. The dispute centred on whether the transactions, which were ostensibly sales of diamonds, were in fact a sham to disguise the provision of credit, and if so, whether FAF and its associated entities were "credit providers" under the statutory regime.

The legal issues before the court included determining whether the transactions between the entities and their customers constituted a provision of credit, and if the entities were indeed "credit providers" under the statutory regime. The court also had to decide whether the transactions were a pretence or sham intended to disguise the true nature of the credit provision. Additionally, the court needed to ascertain whether FAF was involved in the contraventions by its associated entities, thereby contravening the statutory provisions itself.

The court found that the transactions were a pretence or sham designed to hide the true nature of the credit provision. The court held that the arrangements for the sale of diamonds were not genuine but were a cover for the provision of credit. This finding meant that the entities were indeed engaged in credit activities without the necessary licence, thereby contravening the statutory regime. The court further concluded that FAF was involved in the contraventions by its associated entities, as it had actual knowledge of the essential facts constituting the contraventions. The reasoning was based on the definition of "involved in" under the Credit Protection Act, which required knowledge of the essential facts of the contravention.

As a result of the findings, the court ordered that the parties exchange submissions on the proposed forms of order within 21 days and granted liberty to apply for further orders. The final orders were to be entered in accordance with Rule 39.32 of the Federal Court Rules 2011.