ASIC v Money3 Loans Pty Ltd - $1.55M Penalty for Credit Contraventions

Original Word Document (668.4 KB) Federal Court of Australia

Australian Securities and Investments Commission v Money3 Loans Pty Ltd (Penalty) [2026] FCA 506

| File number(s): | VID 350 of 2023 |

| Judgment of: | MCELWAINE J |

| Date of judgment: | 27 April 2026 |

| Catchwords: | CONSUMER LAW – civil penalties for contraventions of ss 128 and 130(1) of the National Consumer Credit Protection Act 2009 (Cth) – determination of appropriate penalties – penalties imposed – compliance order relief refused. |

| Legislation: | National Consumer Credit Protection Act 2009 (Cth) ss 47, 128, 130, 167(2), 167A, 167B, 177

Federal Court of Australia Act 1976 (Cth) s 23

Explanatory Memorandum to the National Consumer Credit Protection Bill 2009 (Cth) |

| Cases cited: | Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157

Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450

Australian Competition and Consumer Commission v BAJV Pty Ltd [2014] FCAFC 52

Australian Competition and Consumer Commission v BlueScope Steel Ltd (No 6) [2023] FCA 1029

Australian Competition and Consumer Commission v Employsure Pty Ltd [2023] FCAFC 5; (2023) 407 ALR 302

Australian Competition and Consumer Commission v Optus Internet Pty L t d [2022] FCA 1397

Australian Competition and Consumer Commission v Qteq Pty Ltd (Penalty) [2026] FCA 356

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25

Australian Competition and Consumer Commission v Samsung Electronics Australia Pty Ltd [2022] FCA 875

Australian Competition and Consumer Commission v Woolworths Ltd [2016] FCA 44

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560

Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd [2018] FCA 155

Australian Securities and Investments Commission v Commonwealth Bank of Australia [2020] FCA 790

Australian Securities and Investments Commission v Darranda Pty Ltd (Penalty) [2025] FCA 938

Australian Securities and Investments Commission v FIIG Securities Ltd [2026] FCA 92

Australian Securities and Investments Commission v Green County Pty Ltd (Penalty) [2025] FCA 1571

Australian Securities and Investments Commission v Money3 Loans Pty Ltd (No 3) [2025] FCA 1086

Australian Securities and Investments Commission v Westpac Banking Corporation (No 3) [2018] FCA 1701

Australian Securities and Investments Commission v Westpac Banking Corporation [2020] FCAFC 111; (2020) 277 FCR 343

Fair Work Building Industry Inspectorate, Director v Commonwealth [2015] HCA 46; (2015) 258 CLR 482

Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; (2018) 260 FCR 68

McDonald v Australian Building and Construction Commissione r [2011] FCAFC 29; (2011) 202 IR 467

Re Make It Mine Finance Pty Ltd (No 2) [2015] FCA 1255

Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249

Trade Practices Commission v CSR Ltd [1990] FCA 762 |

| Division: | General Division |

| Registry: | Victoria |

| National Practice Area: | Commercial and Corporations |

| Sub-area: | Regulator and Consumer Protection |

| Number of paragraphs: | 78 |

| Date of hearing: | 26 February 2026 |

| Counsel for the Applicant: | S R Senathirajah KC and R J Boadle |

| Solicitor for the Applicant: | Australian Government Solicitor |

| Counsel for the Respondent: | C M Caleo KC and C van Proctor |

| Solicitor for the Respondent: | Clayton Utz |
ORDERS

| VID 350 of 2023 |

| BETWEEN: | AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

Applicant | |
| AND: | MONEY3 LOANS PTY LTD (ACN 108 979 406)

Respondent | |

| order made by: | MCELWAINE J |
| DATE OF ORDER: | 2 7 april 2026 |
THE COURT ORDERS THAT:

1. Pursuant to s 167(2) of the National Consumer Credit Protection Act 2009 (Cth) (Credit Act) within 14 days the respondent must pay a pecuniary penalty to the Commonwealth of Australia of $1,550,000 in respect of the contraventions of:

(a) section 128 of the Credit Act, in respect of each of Consumer 1, Consumer 2, Consumer 3, Consumers 4 and 5, and Consumer 6; and

(b) section 130(1) of the Credit Act in respect of each of Consumer 1, Consumer 2, Consumer 3, Consumers 4 and 5, and Consumer 6.

1. By 4 pm on 8 May 2026, the parties must confer in an endeavour to reach agreement as to the costs of the proceeding and if so, file a consent memorandum or if not file their respective costs submissions, limited to 7 pages, plus any affidavit in support, limited to 15 pages inclusive of annexures.

2. Absent agreement, costs will be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCELWAINE J:

Introduction

1 The Australian Securities and Investments Commission (ASIC) commenced this proceeding against Money3 Loans Pty Ltd for contraventions of various responsible lending and general conduct provisions of the National Consumer Credit Protection Act 2009 (Cth). On 5 September 2025, I delivered a liability judgment in which I found that Money3 had contravened ss 128(d) and 130 of the Act: Australian Securities and Investments Commission v Money3 Loans Pty Ltd (No 3) [2025] FCA 1086 (liability judgment or LJ). ASIC’s case succeeded in limited respects: LJ [13]. The contraventions related to five credit contracts that Money3 entered into with six consumers between 8 May 2019 and 18 February 2021 (Relevant Period). These reasons, which deal with final relief, assume familiarity with and adopt the defined terms used in the liability judgment.

2 On 30 October 2025, I made declarations of contravention pursuant to ss 166(2) and (3) of the Act and I adjourned for further hearing the balance of the relief claimed by ASIC. The declarations are prescriptive and detailed, and for convenience are attached as a schedule to these reasons. In summary, Money3 contravened:

(1) Section 130(1) of the Act, in that prior to making the assessment required by ss 128(c) and 129:

(a) in relation to Consumers 1, 2, 3 and 6, it failed to make reasonable inquiries about each consumer’s declared living expenses by inquiring into third party bank account transaction data for the consumer which Money3 had obtained and therefore failed to make reasonable inquiries about their financial situation in accordance with s 130(1)(b) of the Act;

(b) in relation to Consumers 1, 2, 3 and 6, it failed to take reasonable steps to verify each consumer’s declared living expenses by reference to third party bank account transaction data for the consumer which Money3 had obtained and therefore failed to verify their financial situation in accordance with s 130(1)(c) of the Act;

(c) in relation to Consumer 3, it failed to follow up a query made relating to certain payments evidenced by the third party bank account transaction data for the consumer which Money3 had obtained and therefore failed to make reasonable inquiries about their financial situation in accordance with s 130(1)(b) of the Act;

(d) in relation to Consumers 4 and 5, it failed to make reasonable inquiries about the declared living expenses by inquiring into bank account transaction data for the consumers which the consumers had provided and therefore failed to make reasonable inquiries about their financial situation in accordance with s 130(1)(b) of the Act and failed to take reasonable steps to verify their declared living expenses by reference to bank account transaction data and therefore failed to verify their financial situation in accordance with s 130(1)(c) of the Act.

(e) in relation to Consumers 4 and 5, it failed to inquire whether finance was sought for the application fee or the brokerage and therefore failed to make reasonable inquiries about their requirements and objectives in accordance with s 130(1)(a) of the Act; and

(2) Section 128(d) of the Act by failing to make inquiries and verification for each of the consumers in accordance with s 130(1)(b) and (c) of the Act (and s 130(1)(a) in the case of Consumers 4 and 5), as set out above, within 90 days of entering into each credit contract.

3 Sections 167A and 167B of the Act provide for pecuniary penalties. The specified penalties apply, as ASIC does not submit that the benefit multiplier at s 167B(2)(b) applies. The prescribed penalty units varied during the Relevant Period from $210 until 30 June 2020 and $222 thereafter. For the ss 128 and 130 contraventions the penalty for a single contravention by a corporation is 50,000 penalty units: s 167B(2)(a). The maximum total penalty is $53,100,000 calculated as follows:

(a) Consumer 1: 50,000 penalty units x $210 = $10,500,000;

(b) Consumer 2: 50,000 penalty units x $210 = $10,500,000;

(c) Consumer 3: 50,000 penalty units x $210 = $10,500,000;

(d) Consumers 4 and 5: 50,000 penalty units x $222 = $11,100,000;

(e) Consumer 6: 50,000 penalty units x $210 = $10,500,000.

4 ASIC proposes a total pecuniary penalty of $4 million in addition to compliance orders requiring Money3 to ensure it has in place appropriate systems, policies and procedures in relation to its responsible lending obligations under ss 128 and 130 of the Act. Money3 submits that a pecuniary penalty of no greater than $500,000 is appropriate to achieve the primary purpose of deterrence, and that no other orders are necessary or appropriate. It is Money3’s position that ASIC’s proposed penalty is based on the “erroneous foundation” that the Court has made findings of systemic misconduct, when, in fact, the contraventions concern five isolated instances of failure to comply with company policy and procedures.

Statutory Framework and Principles

5 There is no dispute between the parties as about the principles relevant to the imposition of civil penalties.

6 Sections 128 and 130 of the Act each provide a civil penalty for breach. The power to impose pecuniary penalties is discretionary and in an amount the Court considers appropriate, but not exceeding the statutory maxima.

7 Section 167(3) of the Act provides that in determining an appropriate penalty all relevant matters must be taken into account, including the nature and extent of the contravention, the nature and extent of any loss or damage suffered because of the contravention, the circumstances in which the contravention took place and whether the person has previously been found by a Court to have engaged in similar conduct. The relevant considerations concerning pecuniary penalties have been recently summarised by Bromwich J in Australian Competition and Consumer Commission v Qteq Pty Ltd (Penalty) [2026] FCA 356 at [60] and by Shariff J in Australian Securities and Investments Commission v Green County Pty Ltd (Penalty) [2025] FCA 1571 at [12] – [15].

8 A list of matters relevant to informing the assessment of an appropriate penalty were stated by French J in Trade Practices Commission v CSR Ltd [1990] FCA 762 at [42]. They are often referenced as the French factors and were endorsed by the High Court in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 at 18. They are:

1.     The nature and extent of the contravening conduct.

2.     The amount of loss or damage caused.

3.     The circumstances in which the conduct took place.

4.     The size of the contravening company.

5.     The degree of power it has, as evidenced by its market share and ease of entry into the market.

6.     The deliberateness of the contravention and the period over which it extended.

7.     Whether the contravention arose out of the conduct of senior management or at a lower level.

8.     Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention.

9.     Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention.

9 The Court has identified additional factors which may be relevant: Australian Securities and Investments Commission v Westpac Banking Corporation (No 3) [2018] FCA 1701, Beach J at [49]. However, any list of factors is not exhaustive. As the plurality in Pattison observed, while these factors are useful to inform the assessment of the appropriate civil penalty, it is important not to “regard the list of possible relevant considerations as a “rigid catalogue of matters for attention” as if it were a legal checklist”: at [19], citing Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 (Gray, Graham and Buchanan JJ).

10 The fixing of a penalty requires a multifactorial approach, where the result is arrived at by a process of “instinctive synthesis” rather than a mathematical calculation: Australian Competition and Consumer Commission v BlueScope Steel Ltd (No 6) [2023] FCA 1029 at [32], O’Bryan J, citing Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 at 44.

11 The primary purpose of civil penalties is deterrence, both specific and general. Penalties are “primarily if not wholly protective in promoting the public interest in compliance” with the relevant law: Fair Work Building Industry Inspectorate, Director v Commonwealth [2015] HCA 46; (2015) 258 CLR 482 at [55]. Further, whilst the penalty ought not be “disproportionate or oppressive”, it must have the necessary “sting or burden” to have the effect of deterrence: Pattison at [41]; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 at 116. The corollary principle is that the penalty must not be so low as to be regarded as an acceptable cost of doing business: Australian Securities and Investments Commission v Westpac Banking Corporation (No 3) [2018] FCA 1701 (Beach J) at [48].

12 In determining the quantum of the penalty, regard must be had to the maximum penalty prescribed by the statute: Reckitt Benckiser at [154]. The plurality in Pattinson rejected the proposition that the maximum penalty must be reserved exclusively for the worst category of contravening conduct. There must, however, be some reasonable relationship between the theoretical maximum and the final penalty imposed, which may be established by the circumstances of the contravenor and the conduct involved in the contravention: at [10] and [55]. Further, although important, the maximum penalty is “but one yardstick that ordinarily must be applied” when considering the quantum – it must not be applied mechanically: Pattinson at [53].

13 The task is to impose a pecuniary penalty based on the specific facts and circumstances of this case. It is productive of error to determine a penalty by comparison with other cases: Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 at [60], Keane CJ, Finn and Gilmour JJ; Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; (2018) 260 FCR 68 at [69] Allsop CJ, Davies and Wigney JJ. What is required is consistency in the application of the legal principles: Australian Competition and Consumer Commission v Employsure Pty Ltd [2023] FCAFC 5; (2023) 407 ALR 302 (Rares, Stewart, Abraham JJ) at [58]; Australian Competition and Consumer Commission v Woolworths Ltd [2016] FCA 44 at [129], 133.

14 It is also necessary to consider the specific civil penalty provision which has been contravened in light of its context and purpose, and the objects of the relevant statute as a whole: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3 at 116.

15 For cases involving multiple contraventions, the “course of conduct” and the “totality” principle may be applied: Pattinson at [45]. How was explained by Bromwich J in Qte q at [54]:

The course of conduct principle for civil penalty imposition is engaged when there is a sufficient interrelationship between the legal and/or factual elements of two or more contraventions (here, attempted contraventions), to ensure that a pecuniary penalty is not imposed twice for what is in substance the same conduct. This principle (and the parallel principle of totality), are not rigid rules of law, but rather general principles, and therefore useful tools, to guide the exercise of the penalty imposition discretion.

16 The Act also addresses civil double jeopardy. Section 175(1) provides that if a person is ordered to pay a pecuniary penalty under a civil penalty provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct. In Australian Securities and Investments Commission v Australia and New Zealand Banking Group L td [2018] FCA 155, Middleton J considered contraventions of ss 128(a) and (d), and 130(1) of the Act and found that for each relevant credit contract the “particular conduct” giving rise to the contravention of ss 128(a) and (d) was the same as that giving rise to the contravention of s 130(1)(c). In consequence his Honour at [28] proceeded as follows:

Whether by operation of the common law, or as a result of the operation of s 175 of the Act, ANZ should be liable to be ordered to pay a pecuniary penalty only in respect of one contravention for each of the relevant contracts.

17 Acknowledging these principles, ASIC does not seek a penalty in respect of both ss 128 and 130 and accepts that the course of conduct principle applies to each contravention of s 130. I agree. ASIC submits though that a single penalty should be imposed for each credit contract: that is five separate courses of conduct. I also agree. I found in the liability judgment that four credit analysts in assessing five credit contracts in the Relevant Period each separately failed to make reasonable inquiries to ascertain, and to take reasonable steps to verify the financial situation of each of the consumers by failing to consider the transaction data in the supplied bank statements against the declared living expenses.

18 The first failure was of the same type. Mr McAuley was responsible for Consumers 1 and 2, Mr Marchesin for Consumer 3, Mr Ondem for Consumers 4 and 5 and Ms Costantini for Consumer 6. It is well to recall that in each case the analysts failed to do that which a reasonable lender would have done in like circumstances by making inquiries and taking steps to verify the declared living expenses by comparison with the bank transaction data. Money3 required each consumer to provide bank account statements covering a period of 90 days prior to the credit application. Having received the data, no reasonable analysis was undertaken to inquire into the listed transactions to form a view about the declared living expenses and nor was the data reasonably used to verify declared living expenses. In each case, a cursory consideration of the bank data would have revealed that actual living expenses greatly exceeded the declared weekly or monthly rounded amounts. Money3 had reliable data to undertake reasonable inquiries and verification, but failed to use it. Instead, an amount for living expenses was applied from the Money3 Product Guides. In each case, this was contrary to Money3 internal policies and procedures.

19 The gravamen of my reasoning to those conclusions for each of the consumers was the same. By way of example, for Consumer 1, I found at LJ [322] – [325]:

Recall the evidence of Ms Costantini which I addressed in Part 2.3.6, who said that Money3 required consumers at the time to provide bank account statements, which were then reviewed by credit analysts to confirm the receipt of income, to check for poor banking conduct and to identify any regular direct debits that may need to be included in the capacity calculation. She also said that the bank transaction data is presented in a way that assists a review. Mr McAuley did not inquire into the transactions to form a view about the declared living expenses and nor did he use the data as a verification tool. The expenses of Consumer 1 were a component of her financial situation at the time. Mr McAuley had reliable data for the purpose of undertaking the required reasonable inquiry and verification, but he did not use it. No inquiry was made and no verification step was undertaken before $200 per week from the Matrix was applied for weekly expenses. One does not get to the point of considering what discretionary expenses may be reduced to comply with future financial obligations unless one understands what the expenses within the preceding 90-day period in fact are.

By analogy with the Shirt calculus, the reasonably foreseeable risk was non-compliance with the statutory inquiry and verification obligations. The magnitude of risk is measured by the consequences of non-compliance: civil penalty proceedings, injunctions and compensation orders pursuant to Part 4 and/or licence review steps under Part 2 of the Act. The degree of probability of non-compliance was not insignificant if a licensee did not consider the information that it required from a consumer in a broker-initiated application form that the consumer did not sign and verify as correct. It would not have been expensive or difficult for a credit analyst in the position of Mr McAuley at the time to do some arithmetic to determine if the declared amount was comparable with the transaction data and if so, that would have completed a reasonable verification step in this case. Each is separate from any inquiry to Consumer 1 (via the broker) as to which expenses may be able to be reduced in order to meet repayment obligations under a loan if approved. There were no other conflicting responsibilities: the purpose of the statutory scheme is to promote responsible lending conduct and to make the unsuitability assessment. In short, a reasonable licensee at the time would have taken steps to assist in the making of an informed decision about the financial situation of the consumer in order to verify it.

In my view, a reasonable licensee in the position of Money3 in April 2019, cognisant of the obligations at s 130(1)(b) and (c) in the circumstances of Consumer 1 at the time, would have at least considered the data as supplied with the broker application to ascertain, even on a rough calculation, whether the debits in the transaction data were broadly supportive of the stated monthly amount. The transaction data is reliable evidence of expenditure when it is known that the income of Consumer 1 from Centrelink and child support is paid into her bank account by direct credit. This is simply an exercise in using reliable data for the purpose for which it was acquired. It would also have used the transaction data as a verification tool. Taking those steps would then have informed the decision whether to apply the predetermined amounts for dependants and weekly expenses from the Matrix. This is not to say that reasonable steps required Money3 to make the more precise retrospective calculation that I have concluded sits outside of the pleaded ASIC case.

I find that Money3 by not inquiring into the transaction data in the illion bank statement of Consumer 1 and by not using that data as a verification tool, failed to act reasonably as required by s 130(1)(b) and (c). Accordingly, contentions (b), (c) and (g) are made out.

20 For Consumers 4 and 5, ASIC established an additional contravention. Money3 contravened s 130(1)(a) by failing to inquire whether finance was sought for the application fee or brokerage. At LJ [600] I found that when Mr Ondem prepared the pre-approval documentation on 1 February 2021, he included an amount of $995 for the application fee and $660 for brokerage when there was no evidence that the consumers wanted finance for these charges. He assumed that the consumers required finance for each, when a reasonable licensee would have made an inquiry whether that was the case.

Nature and extent of the contraventions

21 This overlaps with consideration of the circumstances in which each contravention took place. ASIC contends that there is a need for a penalty that achieves a strong general deterrent effect. Money3 failed to meet the standards identified in the Act which regulate the conduct of lenders to achieve the protection of consumers. Money3’s conduct, or conduct of a like nature, can have serious and unacceptable consequences for consumers. The penalties therefore must be significant and send a “clear deterrent message to dissuade other lenders” from contravening the standards which are required by the Act to protect consumers. Further, ASIC submits there is a need for specific deterrence in this case as Money3 has not been prepared to admit and accept responsibility for its wrongdoing. That is, ASIC does not consider that reaching settlements with each of the relevant consumers constitutes acceptance of wrongdoing for the purpose of penalties.

22 ASIC further submits that Money3’s failure to comply with the Act occurred in circumstances where its internal guidance required credit analysts to review bank statements for the purposes of inquiring into and verifying the consumers’ expenses. For example, Money3’s Analyst Guide, an internal document used to assist analysts “to be consistent with the responsible lending practices” contained a list of matters to be taken into consideration when analysts were inquiring into consumers’ bank statements: LJ [101] – [105]. Money3’s National Consumer Credit Protection (NCCP) Awareness Training PowerPoint provided that analysts needed to verify information provided by consumers by reviewing their bank account or credit card records: LJ [106] – [108]. Money3 also implemented a Credit Policy in May 2020, which required the credit analysts to obtain three consecutive months of bank statements to verify living expenses and to verify a consumer’s “declared amount of expenditure as well as identify any undisclosed expenses and any transactional behaviour that may raise concerns and further inquiry such as gambling”: LJ [109]. In ASIC’s submission, the analysis that was undertaken was much more limited and therefore non-compliant with Money3’s internal guidance.

23 From the above, ASIC contends that the findings in the liability judgment are enough to establish a pattern of conduct. The submission is that Money3’s failure to comply with the internal guidance should not be seen as “the act of rogue agents or isolated incidents”. The contravening conduct was engaged in by four different representatives of Money3, and the evidence supports a finding that the usual practice of Money3’s credit analysts (over a period of 21 months) included a failure to make reasonable inquiries into and verify expenses by reviewing bank statements.

24 Money3 accepts that the established contraventions are serious; however, submits that it is significant that the protection that those provisions are designed to offer to consumers was not undermined. That is, the Court rejected ASIC’s allegations that any of the credit contracts were required to be assessed as unsuitable and that any of the resulting credit contracts were, in fact, unsuitable. It contends that the contraventions in this case occurred in circumstances where consumers, with a genuine need, obtained funding that ultimately was not unsuitable for them. For that proposition, it refers to the observations of Hespe J in Australian Securities and Investments Commission v Darranda Pty Ltd (Penalty) [2025] FCA 938 at [10]:

Care needs to be taken against approaching the determination of a penalty in this case from a premise that there was something inherently ethically unsound in the nature of the business the Respondents conducted. … As Beach J observed in Make it Mine (No 2) at [19], there is nothing wrong with a commercial operator identifying a commercial opportunity in providing a service to a vulnerable class of consumers and pursuing that opportunity for profit. The provision of services to the vulnerable class of consumers in the present case enabled those consumers to have access to essential household goods that they were otherwise struggling to access.

25 Money3 also rejects the ASIC submission that this is a case of systemic misconduct. It is not supported by any evidence and is contradicted by the internal policies and guidance which ASIC refers to. The contraventions involve five isolated incidents that reflect a failure to follow company policy and procedures; this is not a case of a “serial recalcitrant”. Further, the contraventions were not endorsed by Money3, dishonest or intentionally wrongful, or demonstrative of reckless indifference to Money3’s obligations. These are significant mitigating factors. As to the extent of the contraventions, ASIC failed to establish any contravention in respect of Money3’s processes, policies, procedures or training and there was no finding that Money3 failed to ensure that its representatives complied with its legal obligations.

26 Money3 also disputes ASIC’s contention that the contraventions were not “isolated errors”. It draws attention to the volume of Micro Motor loans entered into in the Relevant Period. In 2019, Money3 entered into 11,801 Micro Motor loans and in 2021, 8,769 Micro Motor loans. Out of those, ASIC established 4 contraventions in 2019 and 1 contravention in 2021. The submission continues that each contravention is properly categorised as “errors”, rather than the result of any failure or inadequacy in training or guidance. The findings in respect of ASIC’s s 47 case, which went to general conduct obligations, make this clear. No contravention was established in respect of Money3’s broader guidance or training systems. Moreover, as Money3 correctly submits, ASIC did not plead any systemic or broader contravening conduct.

27 In my view, this is a case that requires a substantial penalty to achieve the objective of specific and general deterrence. Money3 accepts that the failures were serious contraventions. They were basic failures. In each case the credit analysts had reliable data to perform the tasks of making reasonable inquiries about the consumer’s financial situation and to take reasonable steps to verify the financial situation as required by s 130(1)(b) and (c) of the Act. As explained in detail in the liability judgment, it would not have been difficult to make a comparison of the consumer’s declared living expenses with the itemised data in the bank statements before determining to apply the Matrix or Product Guide expense amounts. These were not cases of minimal discrepancy.

28 For Consumer 1, her declared living expenses were $1,000 per month plus rent of $840: LJ [224]. A simple comparison with the bank data would have revealed glaring inconsistencies: seven-day weekly expenses varied from $961 to $1,152: LJ [318]. Nonetheless, Mr McAuley applied the Product Guide amount of $200 per week for the living expense plus $50 per dependant from the Matrix. No step was taken to verify the declared amount.

29 For Consumer 2, the declared weekly living expenses amount was stated inconsistently. There were amounts of weekly living expenses of $250 and housing expenses of $1,641, but also an amount of $1,172.88 for monthly living expenses: LJ [403]. Three bank statements were submitted, including the illion recalculation of monthly living expenses of $1,172.88, an amount less than 50% of the expenditure evidenced by the transaction data for one of the bank accounts. Mr McAuley did review the bank statements, but his inquiry was limited: LJ [407]. He applied the living expense amounts from the Product Guide of $225 per week. He made no attempt to inquire into the discrepancies before applying the Product Guide amounts: LJ [442].

30 For Consumer 3, the declared amount for monthly living expenses was $1,100. Mr Marchesin made limited inquiries of some entries in the bank transaction data but then applied the Product Guide amounts of $225 per week plus $150 per week for three dependants: LJ [525]. A rudimentary assessment of the bank data would have revealed that in the seven-day period prior to the application date, the expenses were $907.05: LJ [526].

31 For Consumers 4 and 5, there were two assessment periods. No amount was declared for living expenses, save for an amount of $1,050 paid fortnightly for rent: LJ [584]. Mr Ondem did turn his mind to some expenses in the bank statements, but he failed to make any useful inquiries about the actual living expenses, the pattern of expenditure or the average amount in any period: LJ [586]. And this is despite the regular pattern of significant cash withdrawals: LJ [587], [592]. A reasonable licensee at the time would have taken steps, consistently with the Money3 internal guidance documents, to inquire into and verify living expenses particularly because of the glaring pattern of significant cash withdrawals: LJ [593].

32 For Consumer 6, the declared weekly living expenses were $322.50 plus $169.65 for rent: LJ [621]. Ms Costantini failed to notice that the pattern of weekly expenditure in the bank statements was substantially greater than the amount uploaded by the broker to the API system of $1,250 per month. From the bank data, in two seven-day periods the expenditure was approximately $485 and $540: LJ [670]. Ms Costantini made no inquiry into the data, save to note that it did not evidence poor banking conduct: LJ [671].

33 The obligations at s 130(1)(b) and (c) are components of the statutory scheme directed to responsible lending conduct by licensees. The statutory purpose of these inquiries is to set out rules “aimed at better informing consumers and preventing them from being in unsuitable credit contracts”: s 125. To that end, a licensee is required to make the inquiries and take the verification steps to make the unsuitability assessment: s 125. Responsible lending was described in the Explanatory Memorandum to the National Consumer Credit Protection Bill 2009 (Cth) as:

Broadly, the responsible lending conduct obligations set in place expected standards of behaviour of licensees when they enter into consumer credit contracts or leases, where they suggest a credit contract or lease to a consumer, or assist a consumer to apply for a credit contract or lease.

The key obligation on licensees is to ensure they do not provide a credit contract or lease to a consumer or suggest or assist a consumer to enter into a credit contract or lease that is unsuitable for them.

34 As Middleton J explained in Australian Securities and Investments Commission v Westpac Banking Corporation [2020] FCAFC 111; (2020) 277 FCR 343 at [11] – [12]:

Chapter 3 as a whole has a specific purpose to create and enforce a new norm of conduct for credit providers (and brokers) when entering into credit contracts. This context explains the very specific and detailed requirements of the provisions of Pt 3-2, and the very significant penalties to which those contravening those requirements may be subjected. Each of the requirements is a critical part of a sequence leading up to the credit provider making an assessment of unsuitability, by reference to the consumer’s financial situation and requirements and objectives.

The relevant civil penalty provisions in the Act are a key aspect of a regulatory regime imposing prescriptive procedural obligations on the credit provider. This makes it evident that Parliament intended for the credit providers themselves to follow, in a step-by-step way, the responsible lending obligations in Ch 3 of the Act.

35 The scheme of the Act is consumer protection and in this case each consumer was a vulnerable unsophisticated Centrelink benefit recipient. The consumers sought finance for motor vehicles to assist in their modest transport needs. Money3 failed in each case to make the first and most basic inquiry and verification step. The ASIC submission that the failures were systemic is not supported by the liability judgment. Nonetheless, the same basal error was made by four credit analysts in respect of five credit contracts in the Relevant Period. The failures were serious and they undermine the very purpose of the licensee responsible lending obligations. They bespeak not only of a failure to understand the content of the statutory obligations but were also contrary to the Money3 internal guidelines and procedure documents at the time.

36 These matters justify significant pecuniary penalties as a specific deterrent to Money3 to ensure that they are not repeated, but also generally so that all licensees understand the importance of the inquiry and verification steps.

Loss and damage caused by the contraventions

37 ASIC submits that although there has been no finding of actual loss or damage, that has not prevented the Court from imposing significant penalties in similar circumstances. For that submission, it relies upon Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd [2018] FCA 155. Money3, by its failures, created a risk that consumers would enter into unsuitable loans, which had the consequential risk of the consumers being obliged to make repayments they could not afford, where their primary income source was Centrelink benefits.

38 Money3 submits that ASIC’s submissions about loss and damage are “at their highest, speculative and unsupported by any evidence”. In response to the contention that Money3 “created a risk”, it submits that the Court concluded in each case that the asserted risk did not eventuate, which was made clear when it was held that ASIC failed to establish that the credit contracts were unsuitable or that the consumers could only comply with the credit contracts with substantial hardship. Accordingly, ASIC has established no loss or damage, potential or otherwise, which should contribute to the imposition of a lower penalty.

39 In my view, that actual loss or damage by reason of the contraventions was not established is neutral in this case. The inquiry and verification obligations are not causally related to subsequent loss. The anterior obligations that Money contravened attract separate penalties where the prescribed maximum civil penalty is the uniform amount of 50,000 penalty units for a corporation at ss 128 to133 and 167B(2)(a).

Involvement of senior management and compliance culture

40 ASIC submits that employees in leadership roles at Money3 were aware of the credit analysts’ failures to inquire into and verify consumer’s bank statements, and that the non-compliance was recurring. While the specific issue was raised at several team meetings and subsequently emailed to staff as “reminders”, this was ineffectual. During the Relevant Period, the specific issue of failure to check bank statements was raised in team meetings at least seven times. There is no evidence that Money3 further escalated this issue or that the repeated reminders were adequate to address the “culture of non-compliance”. Further, the Money3 compliance team delivered presentations on complaints received regarding the credit analysts’ failures to review bank statements. When Money3 employed new credit analysts, their training involved shadowing an experienced credit analyst: LJ [723]. ASIC submits that it is therefore reasonable to conclude that through the shadowing process, new credit analysts would be trained in the usual practice of the existing credit analysts, “including the practices leading to the contraventions found in this matter”.

41 Money3 submits that that this new case was not put to any witness during cross-examination. There is therefore no evidence that senior management was aware of or involved in the contravening conduct and no finding to the effect that there was any failure in respect of the supervision of credit analysts. To the contrary, the Court made findings that Money3 did not contravene any statutory obligation in respect of training or ensuring compliance by its representatives. Conversely to ASIC, it contends that the complaints presentations support a conclusion that Money3 had a strong “compliance culture” that included oversight at senior levels. Further, it updated its Consumer Credit Risk Policy on 26 November 2025 (November 2025 CCR Policy), within two months of the publication of the liability judgment, further supporting the conclusion that Money3 had a strong compliance culture.

42 In my view, ASIC has not established that senior management was aware at the time of the nature and scope of the issues that led to the contraventions. This case was not put to Ms Crowe and Ms Costantini. ASIC’s s 47 general conduct obligations case, that Money3 failed to take reasonable steps to ensure that its representatives complied with the Act and were adequately trained and competent, failed. Money3 did have in place internal procedures and guidelines which drew attention to the need to inquire into declared living expenses, inter alia, by considering bank transaction data: LJ [101] – [110]. What occurred in this case is that four credit analysts across five consumer loans failed in that regard.

Likely benefits of contraventions to Money3 and detriment avoided by Money3

43 ASIC submits there is no direct evidence of the quantum of any benefit to Money3 or detriment avoided by its conduct. Nonetheless, “as a matter of ordinary commercial experience”, inquiring into and verifying bank statements including reviewing statements and asking questions of the consumer, which Money3 failed to do, is time consuming and the additional time taken leads to less applications being processed and more loans remaining unapproved for a longer period of time while waiting for consumer responses. The submission continues that there is a direct cost to Money3 in staff costs where processing a loan takes longer, and an indirect cost in waiting for consumers to respond to inquiries. Conversely, there is a benefit to Money3 in engaging in the contravening conduct even if the result of further inquiries and verifications is the same, in that the loan is still written. There is a potential additional benefit given there is a risk the inquiries and or verifications result in the loan being found to be unsuitable.

44 Money3 contends that this is not supported by any evidence and should not be accepted and, to the contrary, Money3’s staff were instructed to undertake the steps that the four analysts failed to do in this case.

45 In my view, this ASIC submission is not made out on the evidence. ASIC did not run a cost/benefit case and there is no basis to conclude that as a matter of ordinary or general corporate experience that Money3 would have incurred greater costs if the steps that I found should have been taken, were taken. Moreover, these were the steps that Money3 required its analysts to take according to the internal guideline and procedure documents that were in place.

Size and financial resources of Money3

46 Money3’s size and financial resources are relevant in determining an appropriate penalty: Pattinson at [60]. ASIC submits that Money3 is a significant lender with a large presence in the motor vehicle finance industry and should be held to a high standard. In the 2024 financial year, Money3 recorded revenue of approximately $149 million and in the 2025 financial year approximately $152 million. Between 2018 and 2025, Money3 financed 65,876 Micro Motor loans with a total net amount of $640 million. Accordingly, ASIC submits the pecuniary penalty that it seeks is necessary to achieve specific deterrence given Money3’s resources.

47 Money3 criticises ASIC for basing its submissions on the net amount financed during the period between 2018 and 2025; a period spanning years beyond those relevant to the contraventions found in this case. Further, Money3 is one of several lenders available to consumers seeking a loan for the purchase of a vehicle, and the net financed amount in the 2025 calendar year (to 26 November 2025) was $56 million. In Australia, new lending commitments for road vehicles for the September 2025 quarter was $4.9 billion and accordingly, Money3 could not be described as controlling a large part of the market for vehicle financing, at less than 1%. Money3’s net profit after tax for the 2025 financial year was approximately $10.3 million. The submission continues that ASIC seeks a total penalty of almost 40% of this amount for four instances of contravening conduct in 2019 and one instance of contravening conduct in 2021, in circumstances where no loss or harm has been established.

48 In my view, the starting point is the general principle that the total pecuniary penalty must not equate to a cost of doing business; it must have a sting sufficient to achieve the deterrence objective. The assessment requires an understanding of the current financial position of Money3: Australian Competition and Consumer Commission v BAJV Pty Ltd [2014] FCAFC 52 at [42].

49 Money 3 is a wholly owned subsidiary of Solvar Ltd, an ASX listed entity. The most up to date financial information is the Group Annual R eport for 2025. The Report in the introductory paragraph includes:

Solvar Limited is a leading provider of automotive finance focussed on expanding its operations across consumer and commercial asset finance segments in Australia.

We operate through a portfolio of trusted brands – Money3, Automative Financial Services (AFS), the recently launched Bennji. Our dedicated team of talented professionals is committed to delivering exceptional service to our customers.

50 The headline figures disclose that the Group net profit after tax was $31.4 million (a 17.4% increase from the previous financial year) derived from a loan book of $832.7 million. Revenue increased by 1.4% to $180.3 million. The expected dividend to shareholders was approximately $15.5 million.

51 Delving a little deeper into the consolidated group accounts, the interest income, including fees and charges, was $207.3 million, total expenses were $110.6 million and profit before tax was $44.6 million. Total assets were $961.5 million, primarily comprising cash and equivalents of $98.9 million and loans receivable of $795 million. Total liabilities comprised $607.8 million, primarily composed of borrowings at $585.2 million. This resulted in net assets of $353.7 million, comprising share capital of $209.6 million, reserves of $2.2 million and retained earnings of $141.8 million. The consolidated statement of cash flows references net cash derived from operating activities before changes in operating assets of $87.3 million and net cash inflows from operating activities of $49.5 million.

52 The shareholders of Solvar Ltd are the ultimate beneficiaries of the net profits generated by Money3. It is the position of the consolidated Group that must be considered in assessing the deterrent effect of the total pecuniary penalty. The Group has significant net assets, is a publicly listed company and, recently, generated significant net profit for the benefit of the shareholders. The quantum must be sufficient to deter Money3 from engaging in the same or similar conduct in the future and to ensure that other licensees subject to the obligations in Chapter 3 of the Act “pay attention”: Australian C ompetition and C onsumer C ommission v Samsung Electronics Australia Pty Ltd [2022] FCA 875 at [65], Murphy J.

Corrective measures and remediation

53 ASIC submits that Money3 has elected not to give any evidence of the steps taken to review its procedures upon becoming aware of ASIC’s investigation no later than 2022 or in response to the liability judgment. The Court may therefore infer that no steps have been taken by Money3, or that if such evidence exists it does not assist. Following publication of the liability judgment, Money3 identified in a list of documents for the purpose of penalties the November 2025 CCR Policy, but has not otherwise served any evidence explaining the relevance of the document, or indicating the steps taken to address the findings in the liability judgment, beyond a quote from the Chair of Solvar Ltd in an ASX release dated 8 September 2025 that it would “address the limited findings in favour of ASIC as we strive for our teams to operate at best practice”.

54 The submission continues that the November 2025 CCR Policy, which appears to explain Money3’s current processes suggests that it has not adequately addressed the failures. The declarations made in this matter did not distinguish between those expenses that were discretionary and those that were non-discretionary. The November 2025 CCR Policy provides that Money3 will not verify discretionary expenses and will not specifically verify non-discretionary expenses but will apply a “sense check” where bank statements are provided, without explaining how the sense check will be conducted.

55 Conversely, Money3 submits that it has taken steps to address the contravening conduct by updating its policy material. It accepts responsibility for the findings and has expressed a commitment to working with community and consumer groups and to developing the capability of staff in Money3’s hardship and customer care teams as reflected in the ASX release. It is Money3’s submission that, it’s proposal that a penalty of up to $500,000 is appropriate, is itself an “expression of contrition”.

56 In my view, there is little evidence of contrition by Money3 or Solvar Ltd. The continuous disclosure obligations of Solvar Ltd required it to immediately inform the market upon becoming aware of any information concerning it that a reasonable person would expect to have a material effect on the price or value of its securities. The ASX release is benign in addressing the established contraventions. It opens with a statement reminding the public that the company is “the leading provider of specialist finance” and then moves immediately to the statement that the liability judgment “rejected most of the claims made” and found in favour of ASIC “in very limited respects”. Next follows a statement attributed to the chairperson that “it is reassuring” that the Court found that the staff of Money3 were adequately trained and competent to engage in credit activities. Next it is highlighted that the internal benchmarks for assessing suitability were “appropriate and in compliance with responsible lending obligations” and then finally the statement: “we will address the limited findings in favour of ASIC as we strive for our teams to operate at best practice”. There is at least an acknowledgement, in summary form, of the contraventions that were found, followed by three paragraphs of comment attributed to the managing director and CEO that the company “is committed to ensuring the well-being of its customers” and is “liaising with community and consumer groups to work towards best practice”.

57 Nowhere in the announcement is there to be found a statement of what new practices or procedures Solvar Ltd had or intended to implement to ensure compliance with the inquiry and verification obligations at s 130.

58 Later, Solvar Ltd published the November 2025 CCR Policy. This policy was originally published in May 2025 but was updated with effect from 26 November 2025 to “include responsible lending provisions and repealing the Solvar Responsible Lending Policy”. Paragraph 6.1 references the obligations to make reasonable inquiries about and to take reasonable steps to verify the customer’s financial situation. Paragraph 6.3 emphasises that information needs to be obtained “at a minimum” including expenses “discretionary and non-discretionary”. Expenses are further addressed at paragraph 6.5 by categorisation with examples of discretionary expenses and non-discretionary expenses. The examples of non-discretionary expenses include food and groceries, transport expenses and utilities. There is a statement that “customers will be required to declare their expenses at a sufficiently detailed level to allow expense categories to be reviewed and benchmarked”. It is then stated:

Solvar will verify (i.e.confirm the accuracy of) certain aspects of the customer’s financial situation that are expected to be reflective of what the customer’s financial situation will be going forward.

…

Solvar will not verify discretionary expenses as these, by their very nature, are expenses that customers do not have to incur and/or can choose to reduce or eliminate.

Solvar will not specifically verify non-discretionary expenses (with the exception of rent and credit commitments as noted above) as these expenses, by their nature may fluctuate in the future, and therefore may not necessarily be reflective of the customers expenses going forward. However, where bank statements are supplied, a sense-check needs to be applied against the stated figures using the information available to ensure significant variances are understood and, where applicable, incorporated into the expense profile to best represent ongoing expected expenses. Solvar will then compare the amounts the customer has declared against Solvar’s Benchmark Living Expense figures to validate the reasonableness of the amounts disclosed.

59 Paragraph 6.6 explains that the Benchmark Living Expense is the HEM Benchmark, and there is a basic explanation of the classification procedure contained in it.

60 There is no reference to the liability judgment, nor an explanation of the failures that led to the established contraventions, by way of example to reinforce what amounts to the taking of reasonable steps. ASIC is it correct to submit that the liability findings did not turn on any distinction between discretionary and non-discretionary expenditure. Considering what occurred in this case it is surprising, to say the least, that the document proscribes that discretionary and non-discretionary expenses will not be verified (or specifically verified) in favour of an undefined “sense-check” where bank transaction data is supplied. There is absent from the document an explanation of just what credit analysts must do to perform a sense- check. No practical examples are given.

61 Overall, the ASX release and the November 2025 CCR Policy response is inadequate. It is not a matter that tends to reduce the appropriate penalty.

Cooperation

62 ASIC submits that the Court should not discount any penalty to take into account the cooperation of Money3. Cooperation with authorities during investigations and subsequent proceedings can properly reduce the penalty that would otherwise be imposed: Australian Competition and Consumer Commission v Optus Internet Pty L td [2022] FCA 1397 at [33], Moshinsky J. In that case, his Honour stated that the reduction reflected the fact that such cooperation increases the likelihood of cooperation in future cases in a way that furthers the object of the legislation, it frees up the regulator's resources, thereby increasing the likelihood that other contraveners will be detected and brought to justice, and it facilitates the course of justice.

63 ASIC further contends that compliance with ASIC’s compulsory information gathering and examination notices are not of themselves indicators of cooperation that would lead to a reduction in the penalty, as failure to comply with those notices would give rise to significant liability under s 290 of the Act. The submission continues that save for engaging in alternative dispute resolution and agreeing a “narrow” statement of agreed facts, Money3 contested all of ASIC’s allegations in the proceeding and has not been prepared to admit and accept any responsibility for its wrongdoing.

64 It is Money3’s position that it appropriately defended the proceeding and that the parties have engaged extensively from the commencement of ASIC’s investigation, which was largely unsuccessful for ASIC.

65 In my view, it is significant Money3 successfully defended a large number of cascading contraventions that ASIC alleged for each of the consumers, together with the overall contention of failure in the s 47 obligations. I do not accept the ASIC submission that apart from engaging in alternative dispute resolution and agreeing facts and documents for the purposes of the trial, it should be concluded that Money3 was not prepared to admit liability and accept responsibility for wrongdoing. The difficulty with that submission lies in the sprawling nature of the ASIC case and the numerous permutations of contravention that I noted at LJ [7] – [8]. ASIC ran a multi-faceted proceeding, and Money3 was justified in the conduct of its defence. This is a neutral consideration in the assessment of an appropriate penalty.

Previous findings against Money3

66 Money3 has not previously been found to have engaged in any conduct similar to that alleged by ASIC in this matter. Further, there is no evidence that it has previously been involved in any prior contravention of any provision of the Act. Money3 thus submits that the observation made by Derrington J in Australian Securities and Investments Commission v FIIG Securities L t d [2026] FCA 92 at [76] applies equally in this case; that the “absence of any evidence of any prior similar conduct, removes any thought that [Money3] will not be responsive to the imposition of a penalty, even if it is of a more modest size”.

67 I accept the submission. This matter is mitigatory.

Other cases

68 Despite that every penalty needs to be determined on the specific facts of the case, Money3 draws to attention to three cases that it considers may have some utility. In Darranda, more than 516 contraventions were involved, plus contraventions of s 47 of the Act. The Court imposed a penalty of $400,000 for the “disclosure” breaches, with significantly higher penalties for a contravention of s 47 by each of Darranda ($1 million) and Rent4Keeps ($3 million). In Re Make It Mine Finance Pty Ltd (No 2) [2015] FCA 1255, the Court imposed total penalties of $500,000 for two contraventions of ss 128 and 130(1), where the contravening conduct affected more than 20,000 credit contracts as a result of systemic failures. (The penalty of $500,000 in that case was in fact for four separate contraventions of ss 128(c)-(d) and 130(1)(b)-(c): Make It Mine at [12], [25] and [29]). Nonetheless, Money3 acknowledges that, in the intervening ten years since that penalty, the legislation has been amended to increase the maximum penalties available, however submits that a similar penalty would be appropriate in the present case, because the contraventions related to only five credit contracts and did not result in any identifiable loss or harm, or any benefit to Money3. In Green County, the Court imposed penalties totalling $405,000 on Green County (and $110,000 on Max Funding) for a limited number of contraventions of the Act and the National Credit Code (being Sch 1 to the Act), in circumstances where the maximum penalties for Green County’s contraventions totalled $74,100,000 (and $42,600,000 for Max Funding).

69 I do not derive any assistance by comparing the established conduct in those cases to the contraventions established in this case. Each case is the outcome of a fact intensive evaluative assessment: A ustralian Securities and Investments Commission v Commonwealth Bank of Australia [2020] FCA 790 at [77], Beach J. As correctly submitted for ASIC, the objective is consistency in the application of legal principle: McDonald v Australian B uilding and C onstruction Commissione r [2011] FCAFC 29; (2011) 202 IR 467 at [23] – [25].

Conclusion as to appropriate penalties

70 The course of conduct applies in respect of Money3’s contraventions of s 130 and a single penalty should be imposed for each of the relevant credit contracts. Accordingly, pecuniary penalties should be ordered by reference to the five separate credit contracts.

71 I have considered all the statutory matters at s 167(3) of the Act and those identified by the parties. I am satisfied that a substantial total penalty is required to meet the deterrence objective. I reject the ASIC penalty submission as sitting well beyond what is reasonably required (that is $750,000 for each of Consumers 1, 2, 3 and 6 – two contraventions each, plus $1 million for Consumers 4 and 5 – three contraventions). Likewise, I reject the Money3 penalty submission as severely inadequate.

72 This is not a case that justifies imposing the maximum penalties, or any penalty within range of the maximum.

73 I have concluded that he appropriate penalty for the ss 128 and 130 contraventions is $300,000 for the contraventions established for Consumers 1, 2, 3 and 6 and $350,000 to reflect the additional contravention for Consumers 4 and 5. Thus, the total aggregate amount is $1,550,000. The total penalty is commensurate with the whole of the contravening conduct. It is an amount that is appropriate for the serious nature of the contraventions, carries with it the appropriate sting (it is approximately 5% of the 2025 net Group profit and approximately 0.43% of the Group net assets and as such is not oppressively severe). Though substantially less than the statutory maximum, in the circumstances of this case it is the appropriate aggregate penalty because it strikes the appropriate balance on considering and weighing all the matters I have assessed.

Compliance Orders

74 ASIC seeks additional relief pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) and s 177 of the Act. That Money3 at its own expense:

(a) within 6 months, ensure that it has appropriate systems (including supervision, audit and monitoring systems), policies and procedures to comply with its obligations under ss 128(d) and 130(1) of the Act, and

(b) within 9 months, provide ASIC with a written report of a suitably qualified independent expert confirming Money3’s compliance with (a).

75 In support of the proposed compliance orders, ASIC relies on some of its penalty submissions. Namely, that the evidence supports a finding that the usual practice of Money3’s credit analysts over the Relevant Period included in effect a failure to make reasonable inquiries into and verify expenses by reviewing bank statements, and the November 2025 CCR Policy inadequately addresses the failures found in the liability judgment. From this, ASIC makes the further submission that if Money3’s policies and procedures do not reasonably ensure compliance there is a continuing risk that consumers may be approved for a loan that is otherwise unsuitable and consequently suffer harm.

76 Money3 submits that such orders are not necessary in this case. It submits that ASIC’s contention that the contravening conduct supports a finding as to usual practice is not supported by the evidence or findings, nor did any of the findings (including in respect of the s 47 case) support a conclusion that there is any continuing risk. Further, the Court did not find that Money3’s existing policies were inadequate.

77 I will not grant the further relief that ASIC seeks. The drafting of the compliance orders lacks prescriptive detail. A requirement to ensure that there is in place “appropriate systems, policies and procedures” to achieve compliance with the reasonable inquiry and reasonable verification requirements overlooks that it is for the licensee to determine what is reasonable. As explained in the liability judgment, although the statutory scheme provides for prescription by regulation, it has not been taken up: LJ [61] – [66]. I am quite unconvinced that an order of the type sought by ASIC is likely to achieve the specific deterrence objective more effectively than the pecuniary penalty coupled with the declaratory relief. Moreover, the requirement to provide a written report “from a suitably qualified independent expert” is too vague to be meaningful in this case.

Costs

78 ASIC sought a fixed lump sum costs order; however, in oral submissions this was not pressed. It was agreed between the parties that costs should be dealt with in the ordinary way. I will make orders for written submissions and determination on the papers.

| I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine. |
Associate:

Dated:    27 April 2026

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