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.
The court outcome means 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.
Under an AFCA determination General Commercial also failed to pay over $11,000 to complainants.
“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,” said ASIC commissioner Danielle Press, according to information released by ASIC on January 24.
“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 Federal 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.
“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,” said Justice Downes when handing down the penalty.
The defendants made admissions regarding the misconduct, agreed the penalty amounts and agreed to pay ASIC’s costs.
ASIC said General Commercial held a credit licence from June 28, 2018, until March 11, 2021, when ASIC cancelled its licence on a public interest basis that it was no longer a member company of the AFCA Scheme.