ASIC accepts court enforceable undertaking from BNPL provider Elepay
The Australian Securities and Investments Commission (ASIC) has accepted a court enforceable undertaking from buy now, pay later provider Elevare Pay Easy Pty Ltd, trading as Elepay.
Elepay’s products are financial products under the Design and Distribution Obligations (DDO) of the Corporations Act which requires Elepay to make a Target Market Determination (TMD) before offering them to consumers.
TMDs ensure that products are only sold to consumers in the target market for that product and that the product is appropriate to their needs and objectives.
Elepay admits that from 5 October 2021 to 15 March 2023 it did not have TMDs for seven credit products it distributed to consumers. During this period, Elepay lent $13.748 million to 1,658 retail clients.
ASIC is concerned that Elepay’s failure to make TMDs exposed consumers to the risk of obtaining a financial product that was inappropriate to their needs and objectives.
The regulator is also concerned that Elepay did not have the appropriate compliance systems and controls in place to comply with the DDO.
Elepay made TMDs for its products on 15 March 2023.
To address ASIC’s concerns, Elepay has offered, and ASIC has agreed to accept, an undertaking that it will engage an independent expert to report on:
- whether Elepay’s clients who were issued with one of its products after 5 October 2021 fell within the target market of clients identified in the TMDs,
- the fees and charges that have been paid to Elepay by clients who fall outside of the target market specified in the TMDs,
- whether Elepay’s TMDs comply with the requirements of the DDO and if not, what steps Elepay needs to take to rectify this.
Elepay must notify clients who fall outside of its TMD of the expert’s finding, immediately cease charging those clients any fees and charges, and refund any fees or charges already paid.
From 5 October 2021 to 15 March 2023, Elepay did not hold an Australian credit licence. On 18 October 2023, following the commencement of ASIC’s investigation, Elepay applied to ASIC to obtain an Australian credit licence. On 23 January 2024, ASIC granted Elepay a licence.