RELEVANT LEGISLATION

The Credit Contracts & Consumer Finance Act 2003 (CCCFA) exists to protect the interests of customers in connection with credit contracts such as home & personal loans and requires lenders to act responsibly and fairly at all times.  

When you borrow money, the Credit Contracts and Consumer Finance Act (CCCFA) Act ensures you are able to make informed choices, know what you are agreeing to, and can keep track of your debts.

Under the CCCFA, there are certain things lenders have to tell you when you borrow money. This is called disclosure of information. Lenders who do not make proper disclosure cannot enforce their contracts until disclosure is made.

Outlined below are the specific sections of the CCCFA which the plaintiffs allege ANZ and ASB have not complied with, and which this legal action seeks to hold them to account for.  

S 22: DISCLOSURE OF AGREED CHANGES

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).  

 

This disclosure is important to ensure borrowers are able to make informed choices, know what they have agreed to and can keep track of their debts

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.

 

ANZ sent customers Loan Variation Letters which were intended to provide Variation Disclosure, but contained inaccurate information.  ASB failed to have processes and procedures in place to ensure that all of its customers received Variation Disclosure.​

 

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.

S 99(1A): ENFORCEMENT OF CONSUMER CREDIT CONTRACT PROHIBITED

Under section 99(1A), 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). 

This means, until the Bank provides borrowers with the accurate disclosure information relating to their loan variation, the borrower  is not liable to pay the interest and fees relating to that loan.   

 

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 effect of section s99(1A) is that such customers were and are not liable to pay the costs of borrowing on their Loans relating to the periods during which the Banks were and are in breach their section 22 obligations.  The relevant period will differ for each affected customer.  Generally, it will begin on the day that the customer first made a change to their Loan during the Relevant Period and end either: (i) when their Loan was repaid; or (ii) the date on which the customer’s claim against their Bank is resolved (whether through judgment or settlement).  

S99(1A) has been subject to considerable debate. Click here to understand more 

S 48: RECOVERY OF PAYMENTS

Under section 48, if a creditor receives interest and fees it is not entitled to by virtue of section 99(1A), it must refund or credit those amounts to the borrower as soon as reasonably practicable. 

The plaintiffs in the Action say that the effect of section 99(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.  According, 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, they are both currently in breach of section 48.

S 94: COURT ORDERS

The plaintiffs in the Banking Class Action say that both Banks have breached (and are currently in breach of) sections 22 and 48.  They seek orders from the High Court requiring the Banks to refund or credit to all affected customers the interest and fees they have paid on their Loans in relation to periods during which the Banks were in breach of section 22.

While new s94 provisions came into effect on 20 December 2019 providing the ability for the lender to apply to the Court to have the effect of s48 or S99(1A) extinguished or reduced if the court considers it just and equitable, these provisions are not retrospective and therefore do not apply to ANZ or ASB for the ongoing breach of both s22 and s48.