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21-194MR ASIC sues General Commercial (Urban Commercial) and Eden Capital (Southside Lending) for failure to cooperate with AFCA
ASIC has commenced civil penalty proceedings in the Federal Court against General Commercial Group Pty Ltd (General Commercial), formerly known as Urban Commercial Group, and Eden Capital (Australia) Pty Ltd (Eden Capital), formerly known as Southside Lending, for failing to take reasonable steps to cooperate with Australian Financial Complaints Authority (AFCA).
ASIC also seeks civil penalties against Dale Brendan Heremaia and Benjamin Eden Heremaia, the owners and operators of General Commercial and Eden Capital, for their role in the contraventions.
ASIC alleges that General Commercial and Eden Capital repeatedly engaged in disruptive, aggressive and uncooperative behaviour toward AFCA, with the intent of disrupting AFCA’s complaints handling and investigation processes and undermining the effectiveness, efficiency and fundamental principles of the AFCA Scheme. ASIC alleges that this included:
- failure to pay an AFCA determination to complainants in the amount of $11,492.71;
- threatening AFCA complainants with legal proceedings unless they withdrew their AFCA complaint;
- commencing proceedings against complainants because they lodged a complaint with AFCA;
- making complaints about the conduct of AFCA staff members;
- threatening to withdraw from the AFCA scheme or to not renew their AFCA membership;
- threatening to bring proceedings against AFCA staff members who were investigating complaints;
- commencing proceedings against an AFCA staff member (seeking $25,000 in damages); and
- repeated failures to identify, locate and provide to AFCA documents and information requested for the purposes of resolving the complaints.
ASIC also alleges General Commercial and Eden Capital’s conduct amounted to a breach of their obligations as credit licensees to act, efficiently, honestly and fairly.
‘Compliance with AFCA determinations is a critical part of a licensee’s obligations. It ensures that consumers have access to independent resolutions that can be handled in a timely manner.
‘ASIC expects credit licensees to cooperate with AFCA in resolving a complaint under the AFCA scheme and to comply with the conditions of their licence,’ said ASIC Deputy Chair Sarah Court.
ASIC seeks declarations of contraventions of the National Consumer Credit Protection Act 2009 (Cth) (NCCP Act), pecuniary penalties and other orders to be made by the Federal Court.
Australian Financial Services and Credit Licensees must be a member of AFCA, an external dispute resolution scheme that is available free of charge to consumers; is required to resolve complaints in way that is fair, efficient, timely and independent; and whose determinations are binding on members but not on consumers. Under the rules of the AFCA Scheme, licensees must not begin legal proceedings against a complainant while AFCA is considering their complaint.
Since 6 April 2019, reforms introduced as a result of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Royal Commission mean that a failure to co-operate with AFCA is a civil penalty offence with significant penalties.
Under the NCCP Act, ASIC has the power to cancel or suspend a credit licence if a licensee fails to meet its obligations.
General Commercial held a credit licence from 28 June 2018 until 11 March 2021, when ASIC cancelled its licence on a public interest basis that it was no longer a member company of the AFCA Scheme (21-047MR).
Eden Capital has held a credit licence since 3 September 2015.
ASIC took action in April 2021 against Lightspeed Finance Pty Ltd and its director James Fitzpatrick for breaches of the Credit Act s47(1)(m) (licensee obligation to cooperate with AFCA) (21-075MR).
Financial firms must have membership of the Australian Financial Complaints Authority (AFCA), as well as a dispute resolution system consisting of internal dispute resolution (IDR) procedures that meet ASIC standards and requirements. Each year, the IDR and external dispute resolution (EDR) framework provides free access to redress for many tens of thousands of Australian consumers, small businesses and superannuation fund members who have a complaint against a financial firm.
The matter has been listed for a further case management hearing on 13 December 2021.
Editor's note 2:
On 18 November 2021, the case management hearing listed on 13 December 2021 was vacated and the matter was listed for a further case management hearing on 25 February 2022.
Editor's note 3:
On 25 February 2022, the Court made further procedural orders. The date for the next case management hearing will be set by the court at a later date.
Editor's note 4:
The proceeding has been listed for a penalty hearing on 6 December 2022 at 9:30am.