COSL has clarified its rule that a financial services provider subscriber must not commence or continue with enforcement action (including legal proceedings) once the consumer makes a complaint to COSL.

if legal proceedings have already commenced, COSL’s view is that, rather than seeking repeated stays and adjournments, a FSP should discontinue legal proceedings, particularly where there is no clear indication that the complaint will be closed by COSL imminently.

However the discontinuance may not be required if the consumer’s defence has advanced beyond lodging a defence or defence and counterclaim.

COSL says:

Depending on the stage of the proceedings and the relevant court rules, the FSP may be required to:
• stay the proceedings,
• where a hearing date has been set, adjourn the hearing date from time to time until the complaint is closed by COSL, or
• if a stay or adjournment is not possible (or where the FSP wishes to do so), discontinue the proceedings.

The stay, adjournment or discontinuance must be at no cost to the consumer. The consumer must consent to the stay, adjournment or discontinuance of legal proceedings. If the consumer does not, then we will close the complaint.

However, where the consumer has taken a step beyond lodging a defence or defence and counterclaim, the FSP may be able to continue with the legal proceedings. In these instances, FSPs should contact COSL immediately to discuss whether the legal proceedings can be continued or resumed under the COSL Rules.