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Tuesday 24 January 2023

23-009MR Home finance companies and directors to pay $150,000 for failing to cooperate with AFCA

Home finance companies General Commercial Group Pty Ltd (formerly known as Urban Commercial Group) and Eden Capital (Australia) Pty Ltd (formerly known as Southside Lending) have each been penalised $50,000 by the Federal Court for failing to cooperate with the Australian Financial Complaints Authority (AFCA).

General Commercial director Dale Brendan Heremaia and his son, Eden Capital director Benjamin Eden Heremaia, were ordered to pay $30,000 and $20,000 respectively for their roles in the misconduct.

For the next 12 months, both companies are restrained from engaging in credit activity and the Heremaias are restrained from being involved in any business carrying on credit activity. Eden Capital will be allowed to collect payments on existing loans.

ASIC Commissioner Danielle Press said, ‘Despite being members of AFCA, actions were taken to break the law by threatening to sue complainants, as well as taking legal proceedings against complainants and against an AFCA staff member personally. General Commercial also failed to pay over $11,000 to complainants under an AFCA determination.

‘As directors, Dale and Benjamin Heremaia had a responsibility to make sure their companies complied with AFCA’s processes, but instead, they went out of their way to avoid doing so.’

In response to complaints made about their conduct, both companies were found to have repeatedly refused to provide documents and information to AFCA when requested and harmed AFCA staff by subjecting them to inappropriate and unprofessional behaviour. Further, General Commercial was found to have:

  • Failed to pay an AFCA determination of $11,492.71
  • Commenced legal proceedings against an AFCA staff member after that staff member requested documents related to a complaint
  • Threatened AFCA complainants with legal proceedings unless they withdrew their complaint, and
  • Along with Eden Capital, commenced legal proceedings, via its parent company, Miravo Pty Ltd, against AFCA complainants in the Queensland Civil and Administrative Tribunal.

The Court determined that the conduct of General Commercial and Eden Capital amounted to a breach of their obligation under their Australian credit licences to act efficiently, honestly and fairly and the obligation of licensees to cooperate with AFCA.

In handing down the penalty, Justice Downes said ‘this conduct continued over a lengthy period, it was not inadvertent and it undermined the effective operation of AFCA’s processes and the resolution of the complaints by the consumers.’

The defendants made admissions regarding the misconduct, agreed the penalty amounts and agreed to pay ASIC’s costs.

Download

Judgment (PDF 8.5 MB)

Background

Since 6 April 2019, reforms introduced following 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. This matter was referred to ASIC by AFCA. 

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).

Last updated: 24/01/2023 02:29