Banking Class Action
The Banking Class Action alleges that ANZ and ASB are required to refund interest & fees to over 150,000 customers because they breached New Zealand consumer protection laws.
The Class Action seeks to hold ANZ & ASB accountable for failing to repay this money to customers which the Banks were not legally entitled to receive under the Credit Contracts & Consumer Finance Act (CCCFA).
Opt In, Opt Out or Register to Join
The Court has made orders for the Banking Class Action to proceed on an “opt-out” basis. That means that all ASB and ANZ customers who the Court has determined have the same interest in the proceeding as the named plaintiffs (class members) will be represented in the Action, unless they “opt out” (i.e. proactively elect not to be).
However, class members can also register their interest in the action or “opt in” to the Action if they wish.
A consumer class action on behalf of ANZ and ASB customers.
The Banking Class Action seeks repayment of interest & fees paid by ANZ and ASB customers on their loans which it is alleged they were not liable to pay and the Banks were not entitled to receive under the CCCFA because the Banks failed to meet their disclosure obligations to their customers.
The purpose of the CCCFA is to protect the interests of individual customers when they borrow money. It is important consumer legislation that ensures creditors put the interests of their customers first.
The Class Actions says that the CCCFA clearly states what the consequences are if a bank fails to meet its disclosure obligationsunder the Act. It alleges that ANZ and ASB did not provide proper disclosure information to certain customers, which means they were not legally entitled to receive interest and fees from those customers.
The CCCFA also clearly states that if a bank receives money it was not entitled to, it must repay it. The Class Action says that ANZ and ASB's failures to repay interest and fees are serious breaches of the CCCFA.
Track the progress of the case
Justice Venning’s judgment on Class Issues, Simons & Ors v ANZ & Anor  NZHC 1836, was delivered on 29 July 2022. Read it here >
The plaintiffs and ASB have applied to the High Court for leave to appeal the aspects of the judgment which went against them to the Court of Appeal and it is anticipated that ANZ may apply for leave to cross appeal in due course.
The applications for leave will be heard in the High Court in Auckland on 28 October 2022.
ALLEGED FAILINGS EXPLAINED
Under section 22 of the CCCFA:
If a creditor makes an agreed change to a loan that is a “consumer credit contract” (as defined in the Act) (Loan), it must ensure that it provides the borrower with disclosure of the full particulars of the change within prescribed time frames (Variation Disclosure).
Section 99(1) provides that:
If disclosure is required under section 22, a creditor cannot enforce the relevant Loan before that disclosure is made (i.e. between the date on which Variation Disclosure was required to be provided and the date on which it is in fact provided).
Section 99(1A) provides that:
Borrowers are not liable for interest and fees on a Loan in relation to any period during which the creditor is in breach of section 22 (i.e. between the date on which Variation Disclosure was required to be provided and the date on which it is in fact provided).
Under section 48:
If a borrower makes a payment to a creditor that, by virtue of the Act, the creditor is not entitled to receive, the creditor must refund the payment to the borrower, or credit it against any amount owing by the borrower, as soon as practicable.
Section 99(1) applies to all Loans entered into after April 2005, whereas section 99(1A) is newer and only applies to Loans entered into after 6 June 2015, when the CCCFA was amended by the Credit Contracts and Consumer Finance Amendment Act 2014.
The plaintiffs in the Class Action say that the effects of sections 99(1) and 99(1A) are the same. They further say that under section 48, if a creditor receives interest or fees it is not entitled to by virtue of section 99(1) and/or (1A), it must refund or credit those amounts to the borrower as soon as reasonably practicable
Is my ANZ or ASB loan a “consumer credit contract”?
Generally, an ANZ or ASB loan will be a consumer credit contract (and therefore a Loan) if:
The CCCFA applies to it (i.e. it was entered into after 1 April 2005, or it was entered into earlier, but the Bank elected to have the CCCFA apply.)
The borrower is a natural person (i.e. an individual and not a legal entity, like a company) and not a trustee of a family trust;
The loan was intended to be used wholly or predominantly for personal, domestic or household purposes; and
One or more of the following applies:
Interest charges are or may be payable;
Credit fees are or may be payable; and/or
A security interest is or may be taken.