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23-055MR ASIC commences court proceedings against Green County and others over alleged unlicensed credit activity
ASIC has taken court action against Green County Pty Ltd and Max Funding Pty Ltd for alleged unlicensed credit activity and other breaches of consumer credit laws.
ASIC alleges that Green County and Max Funding failed to make reasonable inquiries about the purpose of loans, which led to Green County providing personal loans to certain borrowers. Neither Green County nor Max Funding were licensed to provide personal loans or act as an intermediary. ASIC alleges that this resulted in these vulnerable consumers not having the benefit of important protections under the Code and being charged more for their loans than they lawfully should.
ASIC Deputy Chair Sarah Court said, ‘The Credit Act provides important safeguards for consumers who apply for personal loans to protect consumers from unfair lending practices. If you are prohibited from providing a certain type of loan because you are not licensed, it is ASIC’s expectation that there are processes in place to help ensure those loans are not provided.’
ASIC also claims that Ivy Tang Gy Ng breached her duty of care and diligence as a director or officer of these companies and ought to have taken reasonable measures to avoid the companies breaching the Credit Act and the Code.
ASIC further alleges that Green County contravened the consumer protection provisions in the Code by:
- exceeding the 48% annual cost rate cap for certain credit contracts;
- failing to specify the annual percentage rates for certain credit contracts; and
- failing to specify the total interest payable for certain credit contracts.
‘ASIC’s allegations of providing personal loans without the proper licence and breaching directors’ duties are serious. Directors and officers have a fundamental responsibility to take reasonable steps to ensure that their organisations have systems in place to comply with the law,’ concluded Ms Court.
ASIC is seeking declarations, pecuniary penalties, injunctions, disqualification orders and other orders from the Court.
The proceeding is to be listed for case management on a date to be determined by the Court.
ASIC alleges that Green County and Max Funding operate a credit lending model where they rely on an exemption from the need to hold an Australian credit licence by Green County requiring prospective borrowers to sign a business purpose declaration. However, business purpose declarations are ineffective including where a credit provider would have known, if they had made reasonable inquiries about the credit purpose, that the credit was in fact to be applied for personal use.
The National Consumer Credit Protection Act (the Credit Act) and the National Credit Code (the Code) impose important obligations to protect consumers, including disclosure requirements, restrictions on fees and interest rates, hardship provisions and free access to independent external dispute resolution services.
The Code contains a prohibition on credit providers entering into a credit contract where the annual cost rate exceeds 48%. The cost rate is determined by a formula that takes into account fees and charges and the timing of repayments.
The Code also contains prohibitions on credit providers entering into a credit contract that does not contain the annual percentage rate (or rates), and the total amount of interest charges payable under the contract.
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