Australian Securities and Investments Commission v Kobelt [2016] FCA 1327

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Kobelt [2016] FCA 1327 File number: SAD 100 of 2014

Judge: WHITE J

Date of judgment: 9 November 2016

Catchwords: CONSUMER LAW – alleged contravention of s 29 of the National Consumer Credit Protection Act 2009 (Cth) by engaging in a credit activity without a licence – sale of second hand vehicles on credit – whether the National Credit Code applied to the provision of credit – whether the difference between the price at which the vehicles were sold on credit (the Book-up price) and the lesser price at which they were sold for cash constituted a charge for the provision of credit within the meaning of s 5 of the Code – whether repayments made at varying times and in varying amounts constituted "instalments" within the meaning of s 11 of the Code. Held: The difference between the cash price and the Book-up price constituted a credit charge and the repayments were instalments for the purposes of s 11. Contraventions of s 29 established. CONSUMER LAW – alleged contravention of s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) – Respondent provided credit to indigenous customers by way of "book-up" – whether his conduct constituted a system of conduct or pattern of behaviour which was unconscionable – elements of the system included the Respondent taking possession of the customers' debit cards and PINs and transferring to himself in repayment of the customers' debt the whole, or nearly the whole, of the credit balance in the customers' accounts from time to time – consideration of factors within s 12CC of the ASIC Act. Held: Respondent's conduct in the book-up system was unconscionable.