Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2021] FCA 684

Federal Court of Australia

Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2021] FCA 684 File number: NSD 1088 of 2020

Judgment of: HALLEY J

Date of judgment: 23 June 2021

Catchwords: CONSUMER LAW – consumer credit – contraventions of the National Consumer Credit Protection Act 2009 (Cth) (Act) and the National Credit Code (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 respondents had arrangement such that amounts payable to them under their respective contracts were each charges for the provision of credit to which the Code applies – whether charges imposed by second respondent were charges for providing credit for the purposes of the exemption in s 6(5) of the Code – whether respondents carrying on a business of providing credit – extended definition of contract in s 204(1) of the Code – whether Australian Securities and Investments Commission v Teleloans Pty Ltd [2015] FCA 648 distinguishable, plainly wrong or per incuriam – whether second respondent was an agent of the borrower – application dismissed.

Legislation: 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 Bill 2009 (Cth) Explanatory Memorandum National Consumer Credit Protection Regulations 2010 (Cth) reg 51 ASIC Corporations (Product Intervention Order – Short Term Credit) Instrument 2019/917 Consumer Credit (New South Wales) Act 1995 (NSW) (repealed) Consumer Credit (New South Wales) Code 1995 (repealed)