Australian Securities and Investments Commission v Fast Access Finance Pty Ltd [2015] FCA 1055

Australian Securities and Investments Commission v Fast Access Finance Pty Ltd [2015] FCA 1055

The so-called 'diamond model' transactions were a pretence and not genuine sales. In substance, the arrangement was for the provision of credit: the customer sought and received cash in exchange for an obligation to repay a higher amount in instalments. The documentation was a sham intended to circumvent consumer...

Source-derived case information.

Parties
Applicant: Australian Securities and Investments Commission; First Respondent: Fast Access Finance Pty Ltd ACN 078 233 084; Second Respondent: Fast Access Finance (Beenleigh) Pty Ltd ACN 095 585 292; Third Respondent: Fast Access Finance (Burleigh Heads) Pty Ltd ACN 104 904 225
Jurisdiction
Australia
Judgment Date
30 September 2015
Procedural Posture
Civil / Judgment on Liability, Relief Reserved Pending Further Submissions
Outcome
Declarations granted finding contraventions of the statutory credit regime; further relief including compensation and penalties reserved for further submissions.
Legal Topics
Consumer Credit, Licensing Requirements, Sham/pretence in Contracts, Credit Activity Without a Licence, Application of National Credit Code, Statutory Penalty Provisions
Consumer Law Financial Law Credit Law Consumer Credit Licensing Requirements Sham/pretence in Contracts Credit Activity Without a Licence Application of National Credit Code +1 more

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Parties

Australian Securities and Investments Commission

Applicant

Fast Access Finance Pty Ltd ACN 078 233 084

First Respondent

Fast Access Finance (Beenleigh) Pty Ltd ACN 095 585 292

Second Respondent

Fast Access Finance (Burleigh Heads) Pty Ltd ACN 104 904 225

Third Respondent

Procedural Posture

Civil / Judgment on Liability, Relief Reserved Pending Further Submissions

Legal Issues

  1. 1 Whether the respondents engaged in credit activity without an Australian credit licence contrary to s 29 of the National Consumer Credit Protection Act 2009 (Cth)
  2. 2 Whether the respondents were 'credit providers' under a 'credit contract' to which the National Credit Code applied
  3. 3 Whether the diamond transactions were a pretence or sham concealing a loan/credit transaction

Ratio Decidendi

The so-called 'diamond model' transactions were a pretence and not genuine sales. In substance, the arrangement was for the provision of credit: the customer sought and received cash in exchange for an obligation to repay a higher amount in instalments. The documentation was a sham intended to circumvent consumer credit regulation. The respondents fell within the scope of 'credit providers' under a 'credit contract' per the National Credit Code. The applicants established that the respondents engaged in credit activity without a licence, contravening s 29 of the National Consumer Credit Protection Act 2009 (Cth). Fast Access Finance was knowingly concerned in and involved with the...

Court Disposition

Declarations granted finding contraventions of the statutory credit regime; further relief including compensation and penalties reserved for further submissions.

Orders

  • Parties to exchange submissions as to forms of order and file them within 21 days.
  • Liberty to apply.