SunshineLoans Pty Ltd v Australian Securities and Investments Commission

The case of SunshineLoans Pty Ltd v Australian Securities and Investments Commission concerns the validity of fees charged by SunshineLoans under its small amount credit contracts. The Australian Securities and Investments Commission (ASIC) sought declarations of contraventions under the National Consumer Credit Protection Act 2009 and the National Credit Code, alleging that the fees were prohibited. The primary issues before the court were whether the Amendment Fees charged by SunshineLoans could be imposed consistently with the Code and whether the Court had jurisdiction to grant declaratory relief for the conduct in question.

The court found that the Amendment Fee was prohibited by sections 23A and 31A of the Code and could not be imposed consistently with the Code. The reasoning of the primary judge was upheld, finding that the terms of the contracts and the imposition of the Amendment Fees constituted contraventions of the Code. The court also determined that ASIC had the statutory authority to seek declaratory relief for contraventions of the Code, and that the Court had jurisdiction to make such declarations, albeit the source of jurisdiction differed for conduct before and after 13 March 2019.

Regarding the conduct of the appeal, the court noted that the numerous grounds of appeal did not engage with the reasoning pathway of the primary judge and that certain matters were not sufficiently developed. Despite these issues, the court concluded that SunshineLoans' appeal should be dismissed, except for the form of the declaratory relief, which was set aside and restated accordingly.

The court ordered that the original declaratory orders be set aside and new orders be made. The new orders declared that SunshineLoans contravened the Code on numerous occasions by imposing and charging the Amendment Fee. The court also outlined the procedure for determining the costs of the appeal, stipulating deadlines for submissions and a final determination on the papers.