Monday 19th August 2019
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The Commerce Commission has lost a bid to thwart peer-to-peer lender Harmoney’s appeal against regulatory proceedings.
The judgment, handed down earlier this month, is the latest in the regulator’s pursuit of the firm.
In a decision clarifying the regulator’s powers, a Court of Appeal panel of Justices Christine French, Forrie Miller and Joe Williams decided that it could hear an appeal even though the case was brought on a slightly unusual basis.
In the Commerce Commission’s proceeding against Harmoney, the regulator used its powers under the Commerce Act to bring the proceeding under a case stated procedure to test the law in the new area of peer-to-peer lending, while also launching separate enforcement proceedings alleging that Harmoney charges too much.
The enforcement proceedings depend on the case stated procedure.
The High Court had broadly ruled against Harmoney, which sought to appeal.
The commission said the court should not even entertain the appeal because the application was brought on a case stated basis. The decision notes the relevant section doesn’t actually confer an express appeal right.
Representing the regulator, Stephen Mills QC argued that the purpose of the law suggested that Parliament didn't mean to create appeal rights, especially because any decision was just advisory and did not affect anyone’s legal rights.
He noted that Harmoney would be able to appeal the enforcement proceedings if it lost anyway and that the whole point of case stated procedures was to be efficient.
While the judges agreed with that they said this didn’t mean that there ought not to be a right of appeal.
Alan Galbraith QC, for Harmoney, argued the court was exercising judicial power so what it did should be appealable.
The court agreed and dismissed the regulator’s application for strikeout.
A spokesperson for the Commerce Commission said there was no date for the appeal to be heard yet.
“In our view, as an important procedure matter, opinions provided by the court guide the commission but do not create rights of appeal. The Court of Appeal has said that Harmoney does have a right of appeal in this case.”
Harmoney chief executive Neil Roberts did not respond to a request for comment.
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