Australian Securities and Investments Commission v SunshineLoans Pty Ltd (No 2)

The Australian Securities and Investments Commission (ASIC) initiated proceedings against SunshineLoans Pty Ltd, a small amount credit contract provider, under the National Consumer Credit Protection Act 2009 (Cth) (Credit Act). ASIC alleged that SunshineLoans contravened sections 24(1A)(a) and (b) of the National Credit Code (Credit Code) and section 47(1)(d) of the Credit Act by imposing fees described as "amendment" or "rescheduled payment" fees in their small amount credit contracts during the period from 1 July 2016 to 2 November 2020. ASIC sought declarations, injunctions, and pecuniary penalties against SunshineLoans for these alleged contraventions.

The primary legal issues before the court were whether ASIC had standing to bring the proceedings under sections 166, 167, and 177 of the Credit Act and whether the court had jurisdiction to hear the matter. SunshineLoans argued that ASIC lacked standing to enforce the civil penalty provisions in the Credit Code because they were not provisions of the Credit Act but of the Credit Code. They further contended that the court lacked jurisdiction to hear the matter as a result. The court rejected these arguments, finding that ASIC's power to enforce the civil penalty provisions in the Credit Code was clear from the statutory language and that there was no lack of standing or jurisdiction.

The court's reasoning focused on the interpretation of the definition of "civil penalty provision" in the Credit Act. SunshineLoans' interpretation would have rendered several sections of the Credit Code unenforceable, which the court found to be an unreasonable result. The court held that the definition should be construed in an ordinary and natural way, and that the Credit Code provisions in question satisfied the definition. This interpretation allowed ASIC to bring the proceedings under the Credit Act, and the court had jurisdiction to hear the matter. Additionally, the court was permitted to make findings beyond the individual loan files contained in the evidence, as SunshineLoans had admitted to the number of times the impugned fee was charged and accepted by it.

The court found that the contraventions alleged by ASIC were established and ordered that the matter be listed for a case management hearing to set a timetable for the hearing on relief. Costs were reserved for determination following the determinations in relation to relief.