Australian Securities and Investments Commission v Accounts Control Management Services Pty Ltd [2012] FCA 1164

Procedural Posture

Application by ASIC Alleging Misleading or Deceptive Conduct and Unduly Harassing or Coercive Conduct by a Debt Collection Agency / Final Reasons for Judgment on Liability and Relief

Legal Issues

1. 1 ['Whether ACM engaged in misleading or deceptive conduct in telephone calls to debtors and third parties.' 'Whether ACM used undue harassment or coercion in connection with debt collection calls.' 'Whether the word "unduly" qualifies both harassment and coercion.' "Whether declaratory and injunctive relief should be granted despite changes to ACM's manual and business ownership." "Whether ASIC's claims under ss 12DA and 12DJ of the Australian Securities and Investments Commission Act 2001 (Cth) could be maintained because ACM was providing financial services."]

Ratio Decidendi

ACM engaged in widespread and systemic misleading or deceptive conduct by telling debtors and third parties that matters were with lawyers, legal proceedings or bankruptcy were imminent, or Sheriff service would occur when those matters were not true. ACM also engaged in unduly harassing or coercive conduct in particular instances, including threats to expose debtors to relatives, friends, employers or neighbours and threats concerning arrest, taxi licence revocation, overseas travel and service at work. The assigned credit card and loan debts were financial products, and ACM provided financial services by granting debtors more time to pay, so ss 12DA and 12DJ of the ASIC Act applied....

Court Disposition

ASIC was entitled to the declaratory and injunctive relief indicated; the defendants should pay ASIC's costs. The parties were ordered to bring in short minutes of order within 14 days.

Orders

• ['The parties bring in short minutes of order to give effect to these reasons within 14 days.' "The defendants should pay ASIC's costs."]