ASIC has appealed a Federal Court decision ordering Cigno Australia and its director Mark Swanepoel, and BSF Solutions and its director Brenton Harrison, to pay a combined $7 million in civil penalties.
The penalties followed the Federal Court’s finding that the companies engaged in credit activity without a license and charged consumers fees that were prohibited under credit laws. The Court ruled Mr Swanepoel and Mr Harrison were involved in those breaches (26-078MR).
ASIC is appealing the decision because it is concerned the penalties imposed provide insufficient deterrence.
The lending model operated by the companies and their directors charged consumers more than $90 million in unlawful fees, and ASIC believes the Respondents’ decision to operate the lending model without a license denied consumers important rights and protections under the credit legislation. The Respondents have not engaged in any remediation program to address the consumer harm caused by charging the unlawful fees.
ASIC’s appeal also seeks clarification from the Full Federal Court on two legal issues relevant to penalty decisions:
- When a contravener may rely, in mitigation of the penalty, upon the receipt of legal advice without tendering that advice to the Court, and
- Whether the ‘benefit obtained’ from the misconduct for the purposes of determining an appropriate penalty should be assessed by reference to profit (as held by the primary judge) or by reference to gross revenue (as argued by ASIC).
The appeal will be heard by the Full Federal Court on a date to be determined.
Download
Background
On 3 October 2023, ASIC began civil penalty proceedings in the Federal Court against Cigno Australia, Mr Swanepoel, BSF Solutions and Mr Harrison for allegedly providing credit without an Australian Credit Licence (23-266MR).
On 24 May 2024, the Federal Court found Cigno Australia and BSF Solutions engaged in credit activity without a licence and charged consumers prohibited fees. The Court also found that Mr Swanepoel and Mr Harrison were involved in the unlicensed activity and other Credit Act breaches (24-111MR).
On 11 June 2024, Cigno Australia, BSF Solutions, Mr Swanepoel and Mr Harrison filed an appeal against the Federal Court’s decision and on 10 July 2025, the Full Federal Court unanimously dismissed the appeal (25-131MR).
On 6 November 2025, the High Court dismissed an application for special leave to appeal by Mr Swanepoel and Mr Harrison (25-268MR).
On 17 April 2026, the Federal Court ordered Cigno Australia, Mr Swanepoel, BSF Solutions and Mr Harrison to pay a combined penalty totalling $7 million (26-078MR).
ASIC has also previously taken action against Cigno Pty Ltd and BHF Solutions Pty Ltd, companies related to the above Respondents, who operated a ‘Continuing Credit Model’ between October 2019 and March 2020.
In June 2022, the Full Federal Court found that the ‘Continuing Credit Model’ was unlawful and that these parties had engaged in credit activities without holding an Australian Credit Licence. In July 2023, on remittal, the Federal Court granted declarations and injunctions against Cigno and BHF (22-158MR).