Original media release from ASIC (14/07/2023).
ASIC has been successful in its action against Cigno Pty Ltd (Cigno) and BHF Solutions Pty Ltd (BHF Solutions), with the Federal Court finding that both companies engaged in credit activities without holding an Australian credit licence. ASIC also obtained permanent injunctions against Cigno and BHF Solutions to protect consumers.
The decision follows a series of appeals during the litigation, including an unsuccessful bid by Cigno and BHF Solutions to seek special leave in the High Court in December 2022 (22-360MR).
ASIC Deputy Chair Karen Chester welcomed the decision, saying, ‘ASIC took this case to stop a harmful lending model, one which circumvented Australian credit laws and regulations and charged excessive fees and charges to many vulnerable consumers. ASIC expects that Cigno and BHF Solutions will notify any affected consumers to ensure they are not paying any fees or charges covered by the injunctions. ASIC also expects that both entities have processes in place to ensure ongoing compliance with the injunctions.’
At the time ASIC commenced proceedings in 2020, BHF Solutions was writing more than 1,000 loans each day. ASIC took the matter to Court with the primary objective of stopping BHF Solutions and Cigno from using this harmful lending model. ASIC is committed to protecting consumers from predatory lending practices and high-cost credit.
In the consumer example described by ASIC in the case, a borrower with a $200 loan repaid in 2 months ended up paying $177.75 in fees to BHF Solutions and Cigno. The same borrower went on to borrow a further $600, ultimately paying another $703 in fees.
Justice Halley found that the objective purpose of the particular lending model established by BHF Solutions and Cigno was to avoid the provisions of the National Credit Act and National Credit Code which provide for the protection of consumers from disproportionate fees and charges.
The injunctions prevent Cigno and BHF Solutions from operating this particular lending model or collecting repayments and fees from consumers on loans provided under this particular model.
Separately ASIC is investigating another lending model involving Cigno Australia Pty Ltd and BSF Solutions Pty Ltd, which are related entities of Cigno and BHF Solutions.
Neither Cigno nor BHF Solutions holds, or has ever held, an Australian credit licence.
Cigno and BHF Solutions operated a lending model purporting to rely on an exemption in the National Credit Code and claimed they did not require an Australian credit licence.
The lender, BHF Solutions, provided the loan and charged a fee under a credit contract to consumers. However, Cigno, under a services agreement, separately charged very high fees (including the ‘financial supply fee’) for arranging and managing the credit. These fees, combined with BHF Solutions’ fees, exceeded the prescribed maximum charge allowed in order to be exempt from holding a credit licence.
In September 2020, ASIC commenced proceedings against Cigno and BHF Solutions seeking declarations and injunctions (20-226MR). In the proceedings, ASIC alleged:
- BHF Solutions contravened section 29 of the National Credit Act by engaging in credit activities without holding an Australian credit licence by entering into a credit contract with a borrower and carrying on a business of providing credit; and
- Cigno contravened section 29 of the National Credit Act by engaging in credit activities without an Australian credit licence by exercising rights of a credit provider in relation to BHF Solutions’ credit contract with the borrower and providing a credit service to the borrower.
In June 2021, the Federal Court dismissed ASIC’s application, finding BHF Solutions and Cigno did not contravene the National Credit Act (21-144MR).
ASIC appealed to the Full Federal Court in July 2021 (21-179MR) and was successful in June 2022 (22-158MR). The Full Federal Court remitted the matter to the trial judge to determine, among other things, final relief against BHF Solutions and Cigno. That hearing took place on 28 November 2022, with judgment delivered on 12 July 2023.
In July 2022, BHF Solutions and Cigno each lodged special leave applications with the High Court to appeal the judgment of the Full Federal Court in June 2022. Those applications were heard on 15 December 2022, with the High Court dismissing the applications (22-360MR).
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