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Question

Assignment topic and requirements:-

Research on two recent Australian cases (not more than 10 years old) involving consumer protection laws.  

Write a report outlining the following:

  1. Case introduction
  2. Outline the Trade Practices Act / Australian Competition and Consumer Act have been breached and explain why they were breached
  3. Discuss and critically ANALYSE the court/tribunal decision and the reason for the decision

Solution

Australian Securities and Investments Commission v. Cash Store Pty Ltd (in liq)

With regard to Unconscionable Conduct, the decision of the Federal Court of Australia in the Australian Securities and Investments Commission v. Cash Store Pty Ltd (in liq) has been heralded as a major development with regard to the law on unconscionable conduct. 

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The first respondent in the present case i.e. Cash Store Pty Ltd. was operating under credit licenses as per Australian law which allowed them to enter into the credit market with a low-value loan that could be arranged for a short period known as 'payday loan'. The second respondent i.e. Assistive Finance Australia Pty Ltd. acted as the credit provider for the 'payday loan.' The applicant, in this case, i.e. Australian Securities and Investments Commission (ASIC) alleged that the respondents had breached the provisions of the National Consumer Credit Protection Act, 2009 (hereinafter referred as 'the Credit Act'). Chapter 3 of the Credit Act lays down 'responsible lending' obligations for all the players in the credit market. Moreover, ASIC also alleged that the respondents had indulged in unconscionable conduct which was prohibited by Section 12CB of the Australian Securities and Investments Commission Act, 2001(hereinafter referred as 'the ASIC Act'). The Court upheld the claims of the ASIC and consequently found that the respondent had acted in breach of Section 12CB of the ASIC Act due to their unconscionable conduct while selling their loans along with the consumer credit insurance.

Breach of the specific provisions of the Australian Consumer Law

The ASIC Act or the Australian Consumer Law primarily has two provisions that deal with the unconscionable conduct of parties. As per the Section 12CB of the ASIC Act, Unconscionable Conduct has been defined as:

'A person must not…in connection with the supply or possible supply of financial services to a person, engage in conduct that is, in all the circumstances, unconscionable.' 

Due to the sale of Consumer Credit Insurance to the customers, the respondents were alleged to have indulged in conduct that was nothing but unconscionable.  

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