The Supreme Court declined the banks’ applications for leave to appeal.  This means that the CFOs made by the Court of Appeal are final. 

The next step is for the plaintiffs’ application for notification orders to be determined by the High Court. After notification, the plaintiffs will advance their application for summary judgment in which they will ask the Court to determine their claims and find that the banks breached s 22 of the Credit Contracts and Consumer Finance Act 2003 and must refund all costs of borrowing the plaintiffs paid during the periods the banks were in breach.

ASB and ANZ applied to the Supreme Court for leave (i.e., permission) to appeal the Court of Appeal’s decision insofar as it relates to CFOs.  The banks intend to argue that the courts do not have jurisdiction to make CFOs and even if they do, the Court of Appeal should not have made CFOs in this case.

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If the Supreme Court grants leave, the banks’ appeals will be heard in Wellington.

Judgment was given by Cooper P, French and Collins JJ on the Class Issues Appeals, Simons & Ors v ANZ & Anor CA481/2022 [2024] NZCA 330.

ASB and ANZ were unsuccessful in their appeals, and their appeals were dismissed.

The plaintiff was successful in their appeal insofar as it related to the High Court’s decision to decline to grant a CFO. The Court of Appeal made CFO orders on the terms sought by the plaintiffs and directed that they commence immediately.

Apart from the granting of CFO orders, the original orders of the High Court were undisturbed.

The appeals and cross-appeals were re-heard over two days in front of a new panel of three Judges in the Court of Appeal.

The parties’ notices of appeal and cross appeal were filed in the Court of Appeal in late 2022. 

The appeals and cross appeals were argued in the Court of Appeal on 11 and 12 July 2023.

Shortly after the hearing, one the Judges that heard the appeal recused themselves due to a potential conflict and the Court of Appeal confirmed that the appeals will need to be reheard by a panel of three new Judges.   

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 parties each sought leave to appeal aspects of the High Court judgment that went against them.  In particular:

• The plaintiffs sought leave to appeal points 3 and 5.

• ASB sought leave to appeal points 1 and 4.

• ANZ sought leave to cross appeal point 4 (but not point 2).

ANZ opposed the plaintiffs’ application to appeal point 3.  That opposition was unsuccessful and on 2 November 2022, the High Court delivered a judgment granting leave.

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Leave was granted to appeal the other points unopposed. 

The Class Issues were argued in the Auckland High Court . 

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

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

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.  

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.