The Banking Class Action was served on ANZ and ASB on 29 September 2021.

Due to the value of the claims, their commercial nature and the public and private importance of the issues raised, the proceeding was endorsed as a Commercial Panel case and allocated to experienced commercial Judge, Justice Venning.

As well as a statement of claim,  the Class Action plaintiffs filed an application for a series of orders (Application) including:

• Leave to bring representative proceedings on an opt-out basis, orders relating to the notification of the claims to all class members and common fund orders (Class Issues);

• Summary judgment (judgment on affidavit evidence, rather than after a full trial) on their own claims.

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The plaintiffs requested that the Application be dealt with on a staged basis, with the Class Issues determined before the hearing of the summary judgment application.  This approach is expected to be more efficient and has the benefit of ensuring that there is clarity as to plaintiffs prior to the hearing of the summary judgment application.  The plaintiffs intention is that the summary judgment application will determine their claims against the defendants as well as key legal issues common to all class members.

The plaintiffs filed an amended statement of claim and an amended version of the Application. The amendments were necessary primarily to take into account new information received from the Banks (and ASB in particular) in response requests by the plaintiffs.  

ANZ and ASB filed their statements of defence and notices of opposition to the Application. 

The plaintiffs’ application for notification orders was adjourned pending determination of the applications for representative orders and CFOs.

The Class Issues were argued in the Auckland High Court . 

Justice Venning’s judgment on Class Issues, Simons & Ors v ANZ & Anor [2022] NZHC 1836, was delivered.  The Court:

• Granted the ASB representative plaintiffs leave to bring their proceeding against ASB on behalf of all persons who are ASB class members on an opt out basis.

• Granted the ANZ representative plaintiffs  leave to bring their proceeding against ANZ on behalf of ANZ class members (who must have entered into their Loans after 5 June 2015) on an opt out basis.

• Refused the ANZ representative plaintiffs leave to represent ANZ customers within the proposed class who entered into Loans with ANZ before 6 June 2015.

• Held that the High Court has jurisdiction to make CFOs.

• Declined to make the CFOs sought by the plaintiffs at this stage of the proceeding.

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.