Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2022] FCAFC 108

Federal Court of Australia

Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2022] FCAFC 108 Appeal from: Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2021] FCA 684; (2021) 153 ACSR 469

File number: NSD 716 of 2021

Judgment of: BESANKO, LEE AND O'BRYAN JJ

Date of judgment: 27 June 2022

Catchwords: CONSUMER LAW – consumer credit – alleged contraventions of the National Consumer Credit Protection Act 2009 (Cth) (Act) and the National Credit Code in Sch 1 of the Act – prohibition on engaging in credit activity without an Australian credit licence – where second respondent provided loan application services to applicants for credit and first respondent provided loans to successful applicants for credit – whether charges imposed by second respondent for "services" were charges for providing credit for the purposes of the exemption in s 6(5) of the Code – whether second respondent was an agent of the first respondent STATUTORY INTERPRETATION – interpretation of the phrase "charge … for providing the credit" in ss 5(1)(c) and 6(5) of the National Credit Code – meaning of "credit contract" in s 4 of the Code – extended definition of contract in s 204(1) of the Code

Legislation: Acts Interpretation Act 1901 (Cth) s 15AA Consumer Credit Legislation Amendment (Enhancements) Act 2012 (Cth) Evidence Act 1995 (Cth) s 191 National Consumer Credit Protection Act 2009 (Cth) ss 3, 5, 6, 7, 8, 9, 29, 35, 166, 175D National Consumer Credit Protection Act 2009 (Cth) Sch 1 (National Credit Code) ss 3, 4, 5, 6, 13, 204 National Consumer Credit Protection Regulations 2010 (Cth) reg 51 Explanatory Memorandum, National Consumer Credit Protection Bill 2009 (Cth) Revised Explanatory Memorandum, Consumer Credit Legislation Amendment (Enhancements) Bill 2012 (Cth) Consumer Credit (Queensland) Act 1994 (Qld) (repealed) Consumer Credit (Queensland) Amendment Act 2001 (Qld) Uniform Consumer Credit Code (repealed) ss 7(1), 7(3)