Commerce Commission v Hawkins [2019] NZDC 23790

Published 21 July 2021

Management banning orders — misrepresentations — dishonesty — unfair conduct — risk of committing further offences — third tier lender — Fair Trading Act 1986, ss 1, 13(1), 24, 40(1) & 46 — District Court Rules 2014, r 9.64(3) — Credit (Repossession) Act 1997, ss 7 & 35 — Personal Property Securities Act 1999, s 44 — Unclaimed Money Act 1971, s 5 — Commerce Commission v Budget Loans Ltd [2016] NZDC 9294 — Commerce Commission v Budget Loans Ltd [2018] NZDC 11202 — Budget Loans Ltd v Commerce Commission [2018] NZHC 3442 — First City Corporation Ltd v Downsview Nominees Ltd [1989] 3 NZLR 710 — Davidson v Registrar of Companies [2011] 1 NZLR 543 — Commerce Commission v Takarunga Management Limited & Trevor Allen Ludlow CRI-2009-090-007407, 1 December 2011 — Commerce Commission v Yuan Rong Yang [2015] NZDC 20403 — Australian Securities and Investments Commission v Adler (2002) 42 ACSR — ACCC v Excite Mobile Pty Limited (No. 2) [2013] ATPR 42-454 — ASIC v Maxwell [2006] NSWSC 1052— Commissioner for Corporate Affairs (WA) v Ekamper (1987) 12 ACLR 519 — R v Gunthorp CA 46/93, 6 September 1993. The Commerce Commission sought management banning orders against the two respondents under s 46C of the Fair Trading Act (the FTA). As directors of a company, Budget Loans (Budget), the repondents had committed offences under the FTA, having been convicted in 2010, 2016 and 2018. The company, under the directions of the defendants, had misrepresented loans and amounts owed, in some cases going as far as breaking in to debtors' houses to take goods to which the company had no claim; and as a means of coercion, taking property of low value and later disposing of it. Under s 46 of the FTA, the District Court may make a management banning order against an individual who was a director or concerned in the management of an incorporated or unincorporated body that has on at least 2 separate occasions within a 10-year period committed an offence against s 40(1), if it is satisfied an order is necessary to protect the public from the risk of that person reoffending. The Judge was satisfied the criteria for the making of a banning order against both respondents was met. They both presented a significant hazard to anyone dealing with any company in their management or control; the public, in particular borrowers, were entitled to be protected from them. The first respondent was banned from being a director or being in any way concerned in or taking part in the management of an incorporated or unincorporated body carrying on business in New Zealand (without leave of the District Court) for eight years. The second respondent was banned for 10 years. The first respondent received a shorter ban as his old age meant his risk to the public would come to an end sooner. Judgment Date: 18 February 2020.