Australian Securities and Investments Commission v Membo Finance Pty Limited [2021] FCA 1166

Australian Securities and Investments Commission v Membo Finance Pty Limited [2021] FCA 1166

The respondents did not establish any pleading deficiency warranting strike out, particulars, or a more detailed concise statement. ASIC's case was sufficiently clear: it pleaded identified statutory contraventions and conduct, supported by particulars, and alleged that Membo failed to have systems and processes in...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
27 September 2021
Procedural Posture
Application by the Respondents to Strike Out Parts of the Applicant's Further Concise Statement Under R 16.21 of the Federal Court Rules 2011 (cth), or Alternatively for Particulars or a More Detailed Concise Statement / Interlocutory Application
Outcome
The amended interlocutory application was dismissed with costs.
Legal Topics
['strike Out' 'particulars' 'concise Statement' 'national Consumer Credit Protection Act 2009 (cth)' 'efficiently, Honestly and Fairly Obligation' 'systems and Processes Pleading Deficiency' 'consumer Credit Enforcement']
['corporations' 'consumer Credit' 'civil Procedure' 'regulator and Consumer Protection'] ['strike Out' 'particulars' 'concise Statement' 'national Consumer Credit Protection Act 2009 (cth)' 'efficiently, Honestly and Fairly Obligation' 'systems and Processes Pleading Deficiency' 'consumer Credit Enforcement']

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application by the Respondents to Strike Out Parts of the Applicant's Further Concise Statement Under R 16.21 of the Federal Court Rules 2011 (cth), or Alternatively for Particulars or a More Detailed Concise Statement / Interlocutory Application

Legal Issues

  1. 1 ["Whether paragraphs 25, 36, 39, 43, 47, 48, 52, 54 to 56, and 63 of ASIC's further concise statement should be struck out under r 16.21 of the Federal Court Rules 2011 (Cth)." 'Whether ASIC should be ordered to provide the usual particulars under r 16.45 or serve a more detailed concise statement under rr 1.32 and 16.13(2).' "Whether ASIC's allegations that Membo failed to maintain systems and procedures to ensure identified conduct did not occur were sufficiently pleaded." 'Whether ASIC sufficiently articulated why Membo allegedly failed to do all things necessary to ensure that credit activities authorised by its licence were engaged in efficiently, honestly and fairly under s 47(1)(a) of the National Consumer Credit Protection Act 2009 (Cth).' 'Whether ASIC impermissibly bifurcated alleged contraventions by reference to the date on which s 47(1)(a) became a civil penalty provision.' "Whether ASIC's public harm allegation required further elaboration."]

Ratio Decidendi

The respondents did not establish any pleading deficiency warranting strike out, particulars, or a more detailed concise statement. ASIC's case was sufficiently clear: it pleaded identified statutory contraventions and conduct, supported by particulars, and alleged that Membo failed to have systems and processes in place to ensure that conduct did not occur. That negative systems case did not require ASIC to plead what systems should have existed or how they should have operated. The further concise statement also sufficiently articulated ASIC's case that Membo failed to act efficiently, honestly and fairly, that Membo failed to take reasonable steps to ensure representative compliance,...

Court Disposition

The amended interlocutory application was dismissed with costs.

Orders

  • ['The amended interlocutory application dated 22 September 2021 be dismissed.' "The respondents pay the applicant's costs of and incidental to the amended interlocutory application."]