Australian Securities and Investments Commission v Accounts Control Management Services Pty Ltd (No 2) [2012] FCA 1317

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Accounts Control Management Services Pty Ltd (No 2) [2012] FCA 1317 Citation: Australian Securities and Investments Commission v Accounts Control Management Services Pty Ltd (No 2) [2012] FCA 1317

Parties: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v ACCOUNTS CONTROL MANAGEMENT SERVICES PTY LTD ACN 050 268 141 and ACM GROUP LTD ACN 127 181 097

File number: NSD 684 of 2011

Judge: PERRAM J

Date of judgment: 23 November 2012

Catchwords: PRACTICE AND PROCEDURE – Orders, form of – whether order granting injunction should include the word 'permanently' – consideration of appropriate form of order

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

Date of hearing: 23 November 2012

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 10

Counsel for the Plaintiff: D Stack

Solicitor for the Plaintiff: Australian Securities and Investments Commission

Counsel for the Defendants: J Petrolo

Solicitor for the Defendants: Beilby Poulden Costello

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 684 of 2011

BETWEEN: AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

Plaintiff

AND: ACCOUNTS CONTROL MANAGEMENT SERVICES PTY LTD ACN 050 268 141

First Defendant

ACM GROUP LTD ACN 127 181 097

Second Defendant

JUDGE: PERRAM J DATE OF ORDER: 23 NOVEMBER 2012 WHERE MADE: SYDNEY

THE COURT DECLARES THAT: 1. Between 24 November 2008 and 21 June 2010, the Defendants engaged in misleading and deceptive conduct in contravention of section 12DA(1) of the Australian Securities and Investments Commission Act 2001 (Cth), by representing to eight debtors who it pursued for payment of credit card and personal loan debts it had acquired from third party creditors that:. (a) the Defendants were a firm which specialised in commencing legal proceedings against debtors for the recovery of debt; (b) the Defendants frequently commenced legal proceedings against debtors for the recovery of debts; (c) the debtor's matter had been referred to the Defendant's lawyer for the purpose of commencing legal proceedings; (d) the Defendants had decided to commence legal proceedings against the debtor; (e) the Defendants would commence legal proceedings immediately against the debtor; (f) the Defendants would cause Sheriff's officers to serve documents upon the debtor; (g) a collections officer was a "Senior Legal Officer"; (h) the Defendants were proceeding to bankrupt a debtor. when none of this was true. And by: (i) contacting a debtor's employer and seeking information on the false premise that they needed the information to verify a credit application. 2. Between 24 November 2008 and 21 June 2010, the Defendants engaged in unduly harassing and coercive conduct in relation to eight debtors, in contravention of section 12DJ(1) of the Australian Securities and Investments Commission Act 2001 (Cth), by: (a) Threatening to issue a warrant for a debtor's arrest; (b) Threatening to inform a debtor's husband about her indebtedness; (c) Threatening to call a debtor's friends and employer until she repaid the debt; (d) Threatening to cause Sheriff's officers to attend a debtor's house to effect service when the Defendants did not intend to do so; (e) Threatening to serve documents on a debtor at her place of employment when the Defendant's did not intend to do so; (f) Threatening to take action against a debtor that would result in his taxi licence being revoked; (g) Threatening to take action against a debtor that would result in him being unable to travel overseas; (h) Calling a debtor's neighbour and friend with the expectation that they would tell the debtor that the Defendants had contacted them; (i) Calling a debtor's employer and eliciting confidential information about a debtor under the false pretence that the debtor had applied for credit; (j) Calling a debtor's employer and eliciting confidential information about the debtor under the false pretence that the debtor would be served with legal papers; and (k) Involving third parties, such as partners, friends and neighbours in the collection of debts with a view to putting pressure on the debtor to pay. THE COURT ORDERS THAT: 3 The Second Defendant, by itself, its servants and its agents be restrained from engaging in the misleading and deceptive conduct declared in paragraphs 1 (a)-(i) above. 4 The Second Defendant, by itself, its servants and its agents be restrained from using undue harassment and coercion as declared in paragraphs 2(a)-(k) above. 5 The Defendants pay the costs of the Plaintiff. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.