Sunshine Loans Pty Ltd v ASIC [2025] FCAFC 34

CONSUMER LAW – appeal from declarations of contraventions of s 47(1) of the National Consumer Credit Protection Act 2009 (Cth) (Act) and s 24(1A) of the National Credit Code (Code) in proceedings brought by regulator under the Act – where appellant in the business of providing small amount credit contracts – where small amount credit contracts made provision for a ‘rescheduled payment’ or ‘amendment’ fee (Amendment Fee) – whether primary judge erred in finding that the Amendment Fee could not be imposed consistently with the Code because it was a fee prohibited by s 23A and s 31A of the Code – whether evidence as to the circumstances pertaining when an Amendment Fee was charged under the contracts relevant to establishing contraventions – held upon proper construction of contract terms, Amendment Fee could not be imposed consistently with the Code – contraventions upheld – appeal dismissed CONSUMER LAW – jurisdiction – where detailed provision made in Act for enforcement of its provisions by regulator – where no like provisions found in the Code – where provisions of the Act enabling the regulator to seek civil penalties for transgressions of Code introduced in 2019 – whether provisions in the Act which empower regulator to apply to the Court for declarations of contraventions and for pecuniary penalties also apply to contraventions of the Code, such that the regulator has statutory authority to apply to the Court seeking declarations – whether Court has jurisdiction to make declarations for pre-2019 conduct – held provisions in the Act with respect to enforcement apply to the Code – source of the Court’s jurisdiction to grant declaratory relief different for pre- and post-2019 conduct – source of Court’s jurisdiction to grant declaratory relief in respect of pre-2019 conduct found in s 21(1) of the Federal Court of Australia Act 1976 (Cth) – declaratory orders of primary judge set aside and restated PRACTICE AND PROCEDURE – conduct of appeal – where more than 30 grounds of appeal advanced – where appeal grounds did not engage with reasoning pathway of primary judge – where appeal grounds challenging factual findings did so by reference to evidence before primary judge – where matters alluded to in appeal grounds not developed in written or oral submissions – consideration of principles in relation to conduct of appeals and formulation of appeal grounds

 

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Original article available at: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2025/2025fcafc0034

For more information, see the original judgement.