The Australian Competition and Consumer Commission has instituted proceedings in the Federal Court against Esanda Finance Corporation Ltd, Capalaba Pty Ltd trading as Nationwide Mercantile Services, and a number of individuals alleging the use of physical force, undue harassment and coercion, and unconscionable conduct.
The ACCC alleged that a consumer who obtained a loan (secured by a chattel mortgage* over a motor vehicle) from Esanda was subjected to physical force, undue harassment and coercion, and unconscionable conduct in breach of sections 51AB and 60 of the Trade Practices Act 1974. The ACCC also alleged a number of individuals breached section 23 of the Western Australian Fair Trading Act 1987 which mirrors section 60.
The ACCC alleges Esanda and/or its agents use physical force to gain entry to the consumer's residence and repossess the motor vehicle, engaged in aggressive and excessive behaviour towards the consumer, failed to specify the amount of arrears or method of calculation, repeatedly observed the consumer or third party in or around their home, visited the spouse of the consumer at her place of employment, restricted access from the consumer’s residence, charged the consumer unreasonable amounts by way of collection fees, made excessive contact with the consumer and acted contrary to a notice of demand given to the consumer.
Section 60 of the Act prohibits a corporation (or its servants or agents) from using physical force, undue harassment or coercion in connection with the supply of goods or services to a consumer or the payment for goods and services by a consumer. Section 51AB of the Act prohibits a corporation from engaging in unconscionable conduct in connection with the supply or possible supply of goods or services to a consumer.
The ACCC is seeking:
- declarations that Esanda, Capalaba and the individuals engaged in conduct in contravention of section 60 of the Act
- declarations that Esanda engaged in unconscionable conduct and that Capalaba was party to or involved in that conduct
- injunctions restraining Esanda, Capalaba and the individuals from engaging in or being otherwise involved in similar conduct
- orders requiring the publication of information
- orders requiring the implementation of trade practices corporate compliance programs and attendance at trade practices seminars
- compensation for loss or damage
- costs
*A chattel mortgage is a mortgage over personal property.