What did the banks’ fail to do?
It is alleged that ANZ and ASB breached section 22 of the CCCFA by failing to provide proper disclosure information to customers who made agreed changes to their Loans during the Relevant Periods. The representative plaintiffs say that the Banks were not legally entitled receive costs of borrowing in relation to any periods during which they were or are in breach of section 22. If they were paid such costs of borrowing, they must fully refund or credit this money to the relevant customers as soon as practicable.
This legal action seeks to hold the Banks accountable for failing to repay costs of borrowing the plaintiffs allege they were not entitled to receive.
Do I need to pay money to join?
No. You do not need to pay anything to participate in the Banking Class Action.
The Banking Class Action is being jointly funded on a success fee basis by Australian based funder, CASL Management Ltd (CASL) and New Zealand’s leading litigation funder, LPF Litigation Funding No. 33 (LPF) (Litigation Funders). They will jointly pay all costs relating to the Class Action in the first instance.
If the Action is unsuccessful, CASL and LPF will not recover their costs (and there will be no cost to you).
If the Action is successful, you will be entitled to share in the benefit of any order, judgment or settlement obtained, after deduction of the amounts to which the Litigation Funders are entitled pursuant to the contractual arrangements between LPF and the representative plaintiffs and others who opt in to in the Action and any Common Fund Orders made by the Court. These amounts include “Project Costs” (being the legal and other costs incurred in pursuing and the Action) and a “CFO Services Fee” (the Funders' commission, being a percentage of the overall amount recovered).
How much will I receive if the action is successful?
The plaintiffs in the Action are asking the Court to order ANZ and ASB to refund or credit the cost of borrowing (interest and fees), which the plaintiffs allege the Banks were not legally entitled to charge or receive during periods in which they were in breach of their disclosure obligations under section 22 of the CCCFA.
By way of example, if you had a home Loan of $500,000 and the interest rate applicable at the time was 4%, your interest payments would have been $20,000 per year. If the Action is successful, we will be seeking to recover $20,000 on your behalf for each year (or part thereof) your Bank was in breach of its disclosure obligations to you.
It is important to understand that you would not be entitled to receive the total amount recovered. If you opt in to the Class Action or CFOs are made, the litigation funders funding the Action will deduct the Services Fee and a share of the costs incurred in achieving a successful outcome (such as, for example, legal fees).
How long is the legal action likely to take?
This is difficult to predict as it will depend on a number of factors, including the availability of the courts and the approach adopted by the Banks.
It is expected that once Class Issues have been finally determined, the Banking Class Action will proceed in two stages:
In the first stage, the issues of whether the Banks are liable to the representative plaintiffs, and whether certain declarations relating to the operation of the relevant provisions of the CCCFA should be made will be decided.
If the representative plaintiffs are successful in stage 1, the proceeding will progress to stage 2. In stage 2, all issues not addressed in stage 1 will be tried and determined.
How do I know whether I am a class member?
ANZ Bank Customers
Pursuant to orders of the High Court, you are an ANZ class member if:
You entered into one or more Loans with ANZ during between 6 June 2015 and 28 May 2016 (ANZ Loan) (Refined ANZ Relevant Period);
You requested and ANZ made one or more agreed changes to the terms of one or more of your ANZ Loans during the Refined ANZ Relevant Period (for example, re-fixing your interest rate or changing the amounts or frequency of your repayments) (agreed changes);
ANZ sent you at least one Loan Variation Letter intended to disclose the full particulars of the agreed changes which, as a result of the Loan Calculator Error, contained Incorrect Information.
We understand many ANZ customers will not have kept the records of changes to their Loans dating back to 2015 and 2016. If you think you may meet the above criteria, but are unsure, please register and we can help you to work out whether you do.
It is highly likely that you are and ANZ class member if you received a letter from the ANZ in or around May 2020 informing you that, following discussions with the Commerce Commission, ANZ agreed to make a payment to you in relation to a “loan calculator problem” (which caused the Loan Variation Letters to contain the Incorrect Information – see “About”).
Lastly, you will not be an ANZ class member if your only post 6 June 2015 loan with ANZ was or is in the name of an entity (such as a company) or in your name in your capacity as a trustee of a family trust (i.e. is not a consumer credit contract).
If you only made agreed changes to an ANZ Loan that was entered into before 6 June 2015 during the ANZ Relevant Period and received a Loan Variation Letter containing Incorrect Information, you are not currently an ANZ class member, but may be one if the ANZ representative plaintiffs succeed on their appeal of the High Court’s judgment dated 29 July 2022. See case progress
ASB Bank Customers:
Pursuant to an order of the High Court, you are an ASB class member if:
You had one or more Loans with ASB during the ASB Relevant Period (6 June 2015 – 18 June 2019);
You requested and ASB made one or more agreed changes to one or more of your ASB Loans during the ASB Relevant Period (agreed changes); and
ASB did not provide you with Variation Disclosure in relation to the agreed changes within the prescribed timeframes.
We understand that many ASB customers will not have kept records of agreed changes to their ASB Loans as far back as 2015 to 2019 and that it is difficult for ASB customers to work out whether they were provided with adequate Variation Disclosure. If you think you may meet the above criteria, but are unsure, please register and we will can help you work out whether you do.
You may well be an ASB class member if you received an email from ASB in early 2021 informing you that the Bank may not have given you written confirmation of changes to your loan as required under the CCCFA and that, in recognition of the same, it had decided to pay you either $68 or $135.
Lastly, you will not be an ASB class member if your loans with ASB were or are in the name of an entity (such as a company) or in your name in your capacity as a trustee of a family trust (i.e. are not consumer credit contracts).
If you think you are or may be an ASB class member and wish to opt out of the ASB representative plaintiffs’ representative action, you can do so here >.
I have requested changes to the terms of my loan a few times. How do I know if I am a class member?
ANZ Bank customers:
If you made changes to a Loan with ANZ that you entered into after 5 June 2015 between 5 June 2015 and 28 May 2016 you may be an ANZ class member.
If you only made agreed changes to an ANZ Loan that was entered into before 6 June 2015 between 30 May 2015 and 28 May 2016 (i.e., the ANZ Relevant Period), you are not currently an ANZ class member, but may be one if the ANZ representative plaintiffs succeed on this aspect of their appeal of the High Court’s judgment dated 29 July 2022.
ASB Bank customers:
If you made a change to your ASB Loan between 6 June 2015 and 18 June 2019 you may be an ASB class member.
Who is funding the Banking Class Action?
The Banking Class Action is being jointly funded by leading Australian based funder, CASL and New Zealand’s pre-eminent litigation funder, LPF Group. Together they are funding the litigation on a success fee basis, at no upfront cost to the plaintiffs and will be entitled to repayment of the costs incurred in pursuing the Action and to a success fee, out of proceeds from the case should the action be successful.
What is a class action?
A class action is legal action brought by one or more named plaintiffs on behalf of a group of people who have the same or similar legal rights.
Class actions promote access to justice by allowing groups of people with similar rights, issues and interests to band together and bring a single claim, pooling resources. This is especially important for claims like this one where it would likely be uneconomic for a single affected customer to bring a claim against their Bank because the amount in issue is too small relative to legal costs.
What consumer laws have the banks breached?
The Banking Class Action alleges the Banks breached section 22 and section 48 of the Credit Contracts and Consumer Finance Act (CCCFA) and also relies on section 99. These provisions are described below.
Under section 22 of the CCCFA, whenever a creditor makes an agreed change to a customer’s loan (defined as a “consumer credit contract” in the CCFA (Loan), it is required to provide the customer with timely disclosure of the full particulars of the change (Variation Disclosure).
It is alleged that both ANZ and ASB failed to provide customers who made changes to their Loans during the ANZ and ASB Relevant Periods with Variation Disclosure in relation to those changes.
The plaintiffs in the Action say that, to date, neither ASB nor ANZ has provided affected customers with Variation Disclosure in relation to changes made their Loans during the Relevant Periods. Accordingly, the Banks are still in breach of s 22.
Section 99 provides strong incentives for creditors to comply with their disclosure obligations.
Section 99(1) states that if disclosure is required under section 22, a creditor cannot enforce the relevant consumer credit contract 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) states that a borrower is not liable for the costs of borrowing (interest and fees) in relation to any period during which a creditor is in breach of its disclosure obligations under section 22.
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.
Section 48 of the CCCFA states that if a creditor receives payments from a borrower that it is not entitled to receive, it must refund or credit the payments to the borrower as soon as practicable.
Most ANZ and ASB customers affected by the Banks’ alleged breaches of section 22 will have paid (and may still be paying) all of the costs of borrowing on their Loans.
The plaintiffs in the Action say that the effect of section 99(1) and (1A) is that the Banks were not entitled to receive any costs of borrowing on affected Loans relating to the periods they were in breach of section 22. Accordingly, they are required under section 48 to refund or credit those amounts to the affected customers as soon as practicable. As neither Bank has done that, the plaintiffs allege they are both currently in breach of section 48.
Both Banks deny the allegations against them, dispute the plaintiffs’ interpretation of the relevant sections of the CCCFA and have raised affirmative defences.
The plaintiffs’ statement of claim and the Banks’ statements of defence can be accessed here >.
How will compensation be decided if the legal action is successful?
The plaintiffs in the Banking Class Action are asking the Court to make orders requiring ANZ and ASB to refund or credit to affected customers the costs of borrowing the Banks received during the periods they were (or still are) in breach of their disclosure obligations under section 22 of the CCCFA.
We expect any successful outcome to be achieved through either a final judgment of the Court or negotiated settlements with the Banks. As explained above, if CFOs are made, the Litigation Funders will be entitled to deduct the costs and their commission from the total amount recovered.
The remaining sum will be distributed amongst affected borrowers depending on their respective entitlements – that is, how much their Bank was required to refund or credit to them (which in turn will depend on how much they paid in interest and fees during the period their Bank was in breach of section 22).
Will I have to pay anything if the Banking Class Action is not successful?
As explained above, CASL and LPF are jointly funding the Banking Class Action. Except in rare circumstances, they will bear the full costs of the proceedings and any adverse costs awards in the event that the Action is unsuccessful.
It is important to understand, however, that if the Banking Class Action is unsuccessful, or is not as successful as you would have liked, and you have not opted out of the action, you will not be able to pursue the same claims, and may not be able to pursue related claims, against ANZ or ASB in other legal proceedings.
I did have a home loan with ANZ or ASB, but I have since moved banks. Could I still be a class member?
If you meet the relevant criteria (click here), you will be an ANZ or ASB class member regardless of whether you are still a customer of ANZ or ASB.
Once I have signed up, will I be asked to do anything else?
The legal team may need to contact you to confirm you are a class member or to obtain additional details relating to your Loan.
Otherwise, the legal team and the representative plaintiffs will run the Banking Class Action and you will not be required to actively participate during stage one, but may need to take some steps during stage two.
You will receive progress updates from the legal team.
Will my personal details be kept private?
Your personal information will only be used for the purpose of the legal proceedings as required by the Court, or by law. The Privacy Act 2020 also applies to any personal information provided.
I received a payment from my bank and was told there’s nothing further I needed to do. How does that payment impact on this legal action?
In their settlements with the Commerce Commission, ANZ and ASB admitted to breaches of section 9C(2)(a)(ii) of the CCCFA (which requires creditors to exercise the care, diligence, and skill of a responsible creditor at all times in all subsequent dealings with a borrower in relation to their loan) and agreed to make remediation payments to customers who received Loan Variation Letters containing incorrect information (in ANZ’s case) or otherwise may not have received Variation Disclosure (in ASB’s case) during the ANZ and ASB Relevant Periods. The Banks did not expressly admit to breaching s22 and the remediation amounts they paid do not reflect the full cost of borrowing paid by customers during the breach periods.
The agreements ANZ and ASB entered into with the Commerce Commission very clearly stated the rights of affected customers to take further action against the Banks for their failure to provide accurate and timely disclosure information were not compromised by the settlement with the Commerce Commission.
To read the Commerce Commission settlements, click here:
Why is it appropriate for the banks to have to refund interest and fees, just because they failed to send me the right information?
The Class Action plaintffs say that actions such as this one play a vitally important role in incentivising compliance with consumer protection laws. The plaintiffs assert that these laws are in place to address the power imbalance that exists between the Banks and consumers, and to achieve appropriate standards of banking conduct. The plaintiffs further say that consumers rely on their banks to provide them with accurate information regarding their loans so that they know how much they owe and can meet their repayment obligations.
Many, if not most consumers cannot or do not look behind the information (and particularly the figures) that their banks provide. The Class Action plaintiffs assert that customers must be able to trust that any information they receive from their bank is accurate and that if a mistake is made , it will be addressed in timely and transparent way.
If there were no consequences for failing to provide consumers with information, or for providing consumers with incorrect information, the plaintiffs maintain that there would be little incentive for banks to ensure they comply with their disclosure obligations.
I can’t find any information or correspondence from my bank relating to the changes I made to my loan or regarding remediation payments made after settlement with the Commerce Commission. Will this impact my ability to participate in the claim?
No. We understand that many ANZ and ASB customers who are class members will not have retained all information relating to their Loans and the changes made to them, or correspondence from their Bank relating to remediation payments.
The Banks will hold all of this information. We can seek such information from the Banks in due course. In the meantime, if you think you may be a class member you can opt into or out of the Class Action on this website.
What if I had a loan with both ASB and ANZ?
You may be an ANZ class member and an ASB class member. If that is the case, you can opt in or out of the proceedings against ANZ and/or ASB.