FEDERAL COURT OF AUSTRALIA - … · Paciocco v Australia and New Zealand Banking Group Limited [2014] FCA 35 . ... Clayton’s case) ... Entry of orders is dealt with in Rule 39.32

FEDERAL COURT OF AUSTRALIA

Paciocco v Australia and New Zealand Banking Group Limited [2014] FCA 35

Citation: Paciocco v Australia and New Zealand Banking Group

Limited [2014] FCA 35 Parties: LUCIO ROBERT PACIOCCO and SPEEDY

DEVELOPMENT GROUP PTY LTD (ACN 006 835 383) v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522)

File number: 196 of 2013 Judge: GORDON J Date of judgment: 5 February 2014 Catchwords: BANKING AND FINANCIAL INSTITUTIONS – law

of penalties – penalties at law – penalties in equity – genuine pre-estimate of damage – breach of contract – collateral or accessory stipulation – security for, and in terrorem of, satisfaction of primary stipulation – further accommodation – alternative mode of performance – inherent circumstances – extravagant and unconscionable – loss and damage – late payment fee – honour fee – dishonour fee – overlimit fee – non-payment fee – card accounts – saving accounts – business accounts – unconscionable conduct – unjust transactions – unfair contract terms – limitation defences

Legislation: Australian Securities and Investments Commission Act

2001 (Cth) Competition and Consumer Act 2010 (Cth) Federal Court of Australia Act 1976 (Cth) National Consumer Credit Protection Act 2009 (Cth) Trade Practices Amendment (Australian Consumer Law) Act (No 1) 2010 (Cth) Australian Consumer Law and Fair Trading Act 2012 (Vic) Fair Trading Act 1999 (Vic) Fair Trading (Amendment) Act 2003 (Vic) Fair Trading Amendment (Australian Consumer Law) Act 2010 (Vic) Fair Trading Amendment (Unfair Contract Terms) Act 2010 (Vic) Fair Trading and Other Acts Amendment Act 2009 (Vic) Limitation of Actions Act 1958 (Vic)

- 2 -

Cases cited: Acron Pacific Ltd v Offshore Oil NL (1985) 157 CLR 514 Air Express v Ansett Transport Industries (Operations) Pty Ltd (1979) 146 CLR 249 AMEV-UDC Finance Limited v Austin (1986) 162 CLR 170 Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205 Andrews v Australia and New Zealand Banking Group Ltd (2011) 211 FCR 53 Ange v First East Auction Holdings Pty Ltd (2011) 284 ALR 638 Australian Competition and Consumer Commission v 4WD Systems Pty Ltd (2003) 200 ALR 491 Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) (2009) 253 ALR 324 Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51 Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] ATPR 42-447 Australian Competition and Consumer Commission v Simply No-Knead Franchising Pty Ltd (2000) 104 FCR 253 Australian Securities and Investments Commission v National Exchange Pty Ltd (2005) 148 FCR 132 Baltic Shipping Company v Dillon (“Mikhail Lermontov”) (1991) 22 NSWLR 1 Baltic Shipping Company v Dillon (1993) 176 CLR 344 BMP Global Distribution Inc v Bank of Nova Scotia [2009] 1 SCR 504 Citicorp Australia Ltd v O'Brien (1996) 40 NSWLR 398 Clydebank Engineering and Shipbuilding Company v Don Jose Ramos Yzquierdo Y Castaneda [1905] AC 6 Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Commonwealth Trading Bank of Australia v Sydney Wide Stores Proprietary Limited (1981) 148 CLR 304 Concut Pty Ltd v Worrell (2000) 75 ALJR 312 Custom Credit Corporation Ltd v Lupi [1992] 1 VR 99 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Devaynes v Noble (1816) 1 Mer 529 (Clayton’s case) Director of Consumer Affairs Victoria v Scully (2013) 303 ALR 168 Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company Limited [1915] AC 79 Elberg v Fraval [2012] VSC 342 English Hop Growers v Dering [1928] 2 KB 174 Farmer v Arundel (1772) 96 ER 485

- 3 -

Fink v Fink (1946) 74 CLR 127 Fletcher Construction Australia Ltd v Varnsdorf Pty Ltd [1998] 3 VR 812 French v Macale (1842) 2 Drury and Warren 269 Godfrey v National Australia Bank (2001) NSWSC 977 Hardy v Martin (1783) 1 Cox Eq Cas 26 Hurley v McDonald’s Australia Ltd (2000) ATPR 41-741 Interstar Wholesale Finance Pty Ltd v Integral Home Loans Pty Ltd (2008) 257 ALR 292 Jetstar Airways Pty Ltd v Free [2008] VSC 539 Johnes v Johnes (1814) 3 ER 969 Kedem v Johnson Lawyers Legal Practice Pty Ltd [2013] FCA 432 Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 Knezevic v Perpetual Trustees Victoria Ltd [2013] NSWCA 199 Knowles v Victorian Mortgage Investments Ltd [2011] VSC 611 La Trobe Capital & Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd (2011) 190 FCR 299 Leduva Pty Ltd v NM Structural Engineering Pty Ltd [2010] NSWSC 1164 Limpgrange Ltd v Bank of Credit and Commerce International SA [1986] FLR 36 Lordsvale Finance Plc v Bank of Zambia [1996] QB 752 Mackenzie v Albany Finance Ltd [2003] WASC 100 May v Brahmbhatt [2013] NSWCA 309 Mayne Nickless Ltd v Multigroup Distribution Services Pty Ltd (2001) 114 FCR 108 McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26 Metro-Goldwyn-Mayer Pty Ltd v Greenham [1966] 2 NSWR 717 Murray v Leisureplay plc [2005] EWCA Civ 963 National Bank of Commerce v National Westminster Bank [1990] 2 Lloyd’s Rep 514 Nu Line Construction Group Pty Ltd v Fowler [2012] NSWSC 587 O’Dea v Allstates Leasing System (WA) Pty Ltd (1983) l52 CLR 359 Office of Fair Trading v Abbey National plc [2008] EWHC 875 (Comm) Perdaman Chemicals and Fertilisers Pty Ltd v ICICI Bank Ltd [2013] FCA 175 Perpetual Trustee Company Limited v Khoshaba [2006] NSWCA 41 Provident Capital Ltd v Papa [2013] NSWCA 36

- 4 -

Radin v Commonwealth Bank of Australia [1998] FCA 1361 Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656 Robophone Facilities v Blank [1966] 1 WLR 1428 Rolfe v Peterson (1772) 2 Bro PC 436 Roumanus v Orchard Holdings (NSW) Pty Ltd (in liq) (2012) 90 ACSR 677 Sent v Jet Corporation of Australia Pty Ltd (1986) 160 CLR 540 Sony Computer Entertainment Australia Pty Ltd v Stirling [2001] FCA 1852 Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd (No 2) (2012) 287 ALR 360 Tonto Home Loans Australia Pty Ltd v Tavares (2011) 15 BPR 29,699 Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581 Wardley Australia Limited v Western Australia (1992) 175 CLR 514 Waterside Workers’ Federation of Australia v Stewart (1919) 27 CLR 119 West v AGC (Advances) Ltd (1986) 5 NSWLR 610 Yarra Capital Group Pty Ltd v Sklash Pty Ltd [2006] VSCA 109 Mason, “‘I’ll have my bond; speak not against my bond’: Constructive trusts and surplus proceeds from performance bonds” (2012) 6 Journal of Equity 74 Pomeroy JN, A Treatise on Equity Jurisprudence (5th ed, The Lawyers Co-operative Publishing Company 1941) Story J, Commentaries on Equity Jurisprudence as Administered in England and America, (13th ed, Boston: Little, Brown and Company, 1886)

Date of hearing: 2-4 and 8-9 December 2013 Date of last submissions: 11 December 2013 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 379 Counsel for the Applicants: MBJ Lee SC with JF Richardson and WAD Edwards Solicitor for the Applicants: Maurice Blackburn

- 5 -

Counsel for the Respondent: AC Archibald QC with MH O'Bryan SC, RG Craig and

C Van Proctor Solicitor for the Respondent: Ashurst Australia

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION 196 of 2013 BETWEEN: LUCIO ROBERT PACIOCCO

First Applicant SPEEDY DEVELOPMENT GROUP PTY LTD (ACN 006 835 383) Second Applicant

AND: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522) Respondent

JUDGE: GORDON J DATE OF ORDER: 5 FEBRUARY 2014 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The parties are directed to bring in orders to give effect to these reasons for judgment

by 4:00pm on 12 February 2014.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).

2

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION 196 of 2013 BETWEEN: LUCIO ROBERT PACIOCCO

First Applicant SPEEDY DEVELOPMENT GROUP PTY LTD (ACN 006 835 383) Second Applicant

AND: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522) Respondent

JUDGE: GORDON J DATE: 5 FEBRUARY 2014 PLACE: MELBOURNE

INDEX

PART 1: OVERVIEW [1]

PART 2: SCOPE OF INITIAL TRIAL [7]

PART 3: STRUCTURE OF BALANCE OF REASONS FOR JUDGMENT [11]

PART 4: APPLICABLE LEGAL PRINCIPLES – PENALTIES [13]

A. INTRODUCTION [13]

B. COMMON LAW [17]

C. IN EQUITY [22]

D. FURTHER ACCOMMODATION / ADDITIONAL STIPULATION / ALTERNATIVE MODE OF PERFORMANCE [33]

E. EXTRAVAGANT, EXORBITANT AND UNCONSCIONABLE [39]

F. LOSS AND DAMAGE [46]

PART 5: SPECIFIC CONTRACTS AND TERMS [49]


B. PRE-DECEMBER 2009 [51]

(1) Card Accounts 9522 and 9629 [51]

(a) Card Account 9522 – Late Payment Fee (Exception Fees 4-11) [52]

(b) Card Account 9629 – Overlimit Fee (Exception Fee 12) and Card [59]

3

Account 9522 – Overlimit Fee (Exception Fee 13)

(2) Saving Account 156 (Exception Fees 1, 2 and 3) [63]

(a) Honour Fee (Exception Fee 1) [65]

(b) Saving Account 156 – Non-Payment Fees (Exception Fees 2 and 3) [67]

(3) Business Account 58555 [69]

C. POST DECEMBER 2009 [70]

(1) Saving Account 156 [70]

(2) Card Accounts 9522 and 9629 [71]

(a) Late Payment Fees (Exception Fees 14, 16-18, 23, 27, 28, 31, 34, 36, 37, 38, 41, 42, 45, 46, 47 and 49) [72]

(b) Overlimit Fees (Exception Fees 15, 19-22, 24-26, 29, 32, 33, 35, 39, 40, 43, 44, 48 and 50) [76]

(3) Business Account 58555 [82]

(a) Honour Fees (Exception Fees 51 and 52) [83]

(b) Other Honour Fees (Exception Fees 53-61 and 72) [86]

(c) Dishonour Fees (Exception Fees 62-71) [89]

D. OTHER RELEVANT CONSIDERATIONS - THE WIDER FRAMEWORK [92]

PART 6: THE EXCEPTION FEE, THE EXCEPTION FEE EVENT AND IS IT A PENALTY? [103]


B. PRE-DECEMBER 2009 – LATE PAYMENT FEES [108]

(1) Exception Fee 4 [108]

(a) Terms and Inherent Circumstances of the Contract, judged at the time of the making of the Contract – step 1 [109]

(b) Exception Fee Events – step 2 [111]

(c) Proper Construction of the relevant stipulation(s) – steps 3 and 4 [113]

(d) Extravagant and Unconscionable – step 5 [117]

(i) Relevant facts and matters [117]

Aspects of the Late Payment Fee Provision [119]

The “inherent circumstances” [122]

ANZ’s State of Mind [124]

(ii) Quantitative assessment [131]

Introduction [131]

4

Issues with the Inglis Reports [138]

Finch Report [169]

(e) Loss and damage – step 6 [170]

(f) ANZ’s other submissions [175]

(2) Exception Fees 5-11 [177]






C. PRE-DECEMBER 2009 –- HONOUR, OVERLIMIT AND NON-PAYMENT FEES [188]

(1) Saving Honour Fee (Exception Fee 1) [188]






(2) Overlimit Fees on the Card Accounts: Exception Fees 12 and 13 [213]


(b) Events or transactions giving rise to the imposition of Exception Fees 12 and 13 – step 2 [214]




(3) Non-Payment Fees: Exception Fees 2 and 3 [230]

D. POST DECEMBER 2009 – LATE PAYMENT FEES [234]

(1) Exception Fees 14, 16-18, 23, 27, 28, 31, 34, 36-38, 41, 42, 45-47 and 49 [235]



5




E. POST DECEMBER 2009 – OVERLIMIT, HONOUR AND DISHONOUR FEES [243]

(1) Overlimit Fees (Exception Fees 15, 19-22, 24-26, 29, 30, 32, 33, 35, 39, 40, 43, 44, 48 and 50) [243]






(2) Business Honour Fees (Exception Fees 51-61 and 72) [254]






(3) Business Dishonour Fees (Exception Fees 62-71) [267]






PART 7: UNCONSCIONABLE CONDUCT [275]


B. APPLICABLE LEGAL PRINCIPLES [279]

C. APPLICANTS’ SUBMISSIONS [286]

D. ANALYSIS [289]

(1) Introduction [289]

(2) ANZ had all or most of the bargaining power in its relationship with the Applicants [292]

6

(3) Exception Fees imposed by standard form contracts drafted by ANZ and other terms of those standard form contracts [294]

(4) Contracts for essential services where termination attended by significant inconvenience [298]

(5) Fees more likely paid by low-income customers in financial difficulty [299]

(6) Quantum of Exception Fees out of proportion to ANZ’s loss from Exception Fee Event [300]

(7) Applied fee waiver inconsistently between customers [302]

(8) ANZ took advantage of fact that Applicants initiated Exception Fee Events irrationally, inadvertently and unintentionally and as the result of accident, oversight or mismanagement of finances [304]

(9) ANZ uniquely placed to prevent customers inadvertently triggering most if not all exception fees [305]

(10) Exception Fees charged regardless whether caused by ANZ’s payment systems and thus incurred beyond the control or understanding of the customer [307]

(11) Honour and Overlimit Fees – ANZ fully compensated by interest on overdrawn sum (which included a profit margin) [308]

(12) December 2009 redrafting of the contracts [309]

(13) Conclusion [310]

PART 8: UNJUST TRANSACTIONS UNDER THE CREDIT CODES [311]


B. APPLICABLE LAW [314]

C. ANALYSIS [322]

PART 9: UNFAIR CONTRACT TERMS [326]


(1) Phase 1 – 9 October 2003 to 11 June 2009 [328]

(2) Phase 2 – 11 June 2009 to 1 July 2010 [332]

(3) Phase 3 – 1 July 2010 to 31 December 2010 [336]

(4) Phase 4 –- 1 January 2011 to 1 July 2012 [339]

B. AREAS OF DISPUTE [342]

C. ANALYSIS [352]

PART 10: LIMITATION DEFENCES [354]

A. PENALTY CLAIMS [356]

B. UNCONSCIONABLE CONDUCT UNDER THE ASIC ACT AND THE FTA [367]

7

C. UNJUST TRANSACTIONS UNDER THE NEW CODE [371]

D. UNFAIR TERMS UNDER THE FTA AND THE ASIC ACT [372]

PART 11: REMEDIES AND ORDERS [373]

8

REASONS FOR JUDGMENT

PART 1: OVERVIEW

1 The Applicants, Mr Paciocco and one of his companies, Speedy Development Group Pty

Ltd (SDG), held accounts with the Australia and New Zealand Banking Group Limited (ANZ).

Mr Paciocco held a consumer deposit account and two consumer credit card accounts. SDG held

a business deposit account.

2 The contractual terms for both the consumer deposit account and the business deposit

account entitled ANZ to charge honour, dishonour and non-payment fees. The contractual terms

for the consumer credit card accounts entitled ANZ to charge late payment fees and overlimit

fees. Mr Paciocco and SDG alleged that the contractual terms that entitled ANZ to charge these

fees (the Exception Fee Provisions) constituted penalties at common law and in equity. The 72

fees in issue (the Exception Fees), including the Exception Fee Provision(s) applicable to each

Exception Fee, are listed in Annexure 1.

3 If the Court found that an Exception Fee did not constitute a penalty at common law or a

penalty in equity, Mr Paciocco and SDG then contended that:

1. By including the Exception Fee Provision in the contract and giving effect to it,

ANZ engaged in unconscionable conduct within ss 12CB and 12CC of the Australian

Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and/or ss 8 and 8A of

the Fair Trading Act 1999 (Vic) (FTA).

2. The consumer credit card accounts were unjust under the National Credit Code found in

Sch 1 to the National Consumer Credit Protection Act 2009 (Cth) (the New Code).

3. The Exception Fee Provisions in Mr Paciocco’s consumer deposit account and consumer

credit card accounts were unfair contract terms within s 32W of the FTA and/or s 12BG of

the ASIC Act.

4 For the reasons that follow, the Late Payment Fees charged by ANZ on Mr Paciocco’s

consumer credit cards constituted a penalty at common law and a penalty in equity. The liability

to pay the Late Payment Fee was contingent upon a breach of contract and further or alternatively,

was collateral (or accessory) to a primary stipulation (to make a payment by a particular date) in

favour of ANZ. That collateral stipulation, upon failure of the primary stipulation, imposed upon

the customer an additional detriment in the nature of a security for, and in terrorem of,

the satisfaction of the primary stipulation which was extravagant, exorbitant and unconscionable.

9

5 The honour, dishonour, non-payment or overlimit fees charged to the Applicants by ANZ

were of a different character. None of them constituted a penalty at common law or a penalty in

equity. The liability to pay each of those fees was not contingent upon a breach of contract,

nor collateral (or accessory) to a primary stipulation in favour of ANZ. The liability to pay each

arose as a result of, and in exchange for, something more than and different from what had been

agreed in the primary stipulation. They were not penal in nature. Further, none of the Exception

Fee Provisions that entitled ANZ to charge the Applicants the Honour, Dishonour, Non-Payment

or Overlimit Fees contravened any of the other statutory provisions earlier identified.

6 Finally, Exception Fee 2 and Exception Fee 3 are different. ANZ accepted that

Mr Paciocco is entitled to common law damages for breach of contract in the sum of the amount

of Exception Fee 2 and Exception Fee 3 from the date of the charging of each Exception Fee

together with interest. Mr Paciocco’s entitlement to those damages arises because ANZ admitted

that the applicable contractual arrangements between ANZ and Mr Paciocco did not permit ANZ

to charge each of the Exception Fees.

PART 2: SCOPE OF INITIAL TRIAL

7 This is a representative proceeding under Pt IVA of the Federal Court of Australia Act

1976 (Cth): Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26 at [6]-[9].

8 By consent, this trial was limited to the determination of:

the entirety of each of the applicants’ claims in relation to Exception Fees … charged by ANZ during the following periods: (a) in the case of Saving Accounts, May 2004 to 14 December 2009; (b) in the case of Card Accounts, after March 2004; and (c) in the case of Business Accounts, after August 2004.

9 The Saving Account was Mr Paciocco’s Access Advantage Account number xxx-xxl56

(Saving Account 156) opened on 10 June 1997 and which, from June 2009, had an Assured

Overdraft Facility with an approved overdraft limit of $500. There were two Card Accounts.

Mr Paciocco’s first Card Account was Low Rate MasterCard Account number xxxx-xxxx-xxxx-

9522 (Card Account 9522) opened in June 2006 with a credit limit of $15,000 which increased to

$18,000 in November 2009. His second Card Account was Low Rate MasterCard Account

number xxxx-xxxx-xxxx-9629 (Card Account 9629) opened in July 2009 with a credit limit of

$4,000.

10

10 SDG’s claims related to Exception Fees charged on Business Classic Account number

xxxx-58555 (Business Account 58555) opened in December 2008. From April 2011,

that account had an overdraft of $10,000 which increased in November 2011 to $49,999.

PART 3: STRUCTURE OF BALANCE OF REASONS FOR JUDGMENT

11 These reasons for judgment will introduce the penalty doctrine at common law and in

equity (Part 4, Section A), address the principles for a penalty at common law (Part 4, Section B)

and for a penalty in equity (Part 4, Section C), and then turn to consider the “alternative mode of

performance” line of authorities (Part 4, Section D), the requirement of extravagance and

unconscionability (Part 4, Section E) and the question of loss and damage (Part 4 Section F).

Next, these reasons will identify the contracts and terms by which ANZ charged each Exception

Fee (Part 5) and then consider each Exception Fee (Part 6).

12 The balance of these reasons will address the alternative statutory causes of action relied

upon by the Applicants (Parts 7-9) and finally the question whether some of the Applicants’

claims were statute barred (Part 10).

PART 4: APPLICABLE LEGAL PRINCIPLES – PENALTIES

A. INTRODUCTION

13 The Applicants alleged that the Exception Fee Provisions were penalties at common law

and, further or alternatively, penalties in equity. The need to consider them separately was said by

both sides to arise from the decision of the High Court in Andrews v Australia and New Zealand

Banking Group Ltd (2012) 247 CLR 205 (Andrews High Court). The penalty doctrine in equity

has not been subsumed into the common law: Andrews High Court at [51].

14 Although it is said now by both sides to be necessary to consider the penalties question at

law and in equity separately, the principles, and the relief, are not unconnected. While the

circumstances necessary to enliven the common law doctrine are different from those necessary to

enliven equity, a stipulation (to pay a sum or other property) will not constitute a penalty at law or

in equity unless it is “extravagant and unconscionable in amount in comparison with the greatest

loss that could conceivably be proved”: Dunlop Pneumatic Tyre Company Limited v New Garage

and Motor Company Limited [1915] AC 79 at 87.

15 To assist in understanding the form and substance of the following analysis, a particular

stipulation may (not must) be considered by reference to the following steps:

11

1. Identify the terms and inherent circumstances of the contract, judged at the time of the

making of the contract: Dunlop at 86-87 and AMEV-UDC Finance Limited v Austin

(1986) 162 CLR 170.

2. Identify the event or transaction which gives rise to the imposition of the stipulation:

Dunlop at 86-87 and Andrews High Court at [12].

3. Identify if the stipulation is payable on breach of a term of the contract (a necessary

element at law but not in equity). This necessarily involves consideration of the substance

of the term, including whether the term is security for, and in terrorem of, the satisfaction

of the term.

4. Identify if the stipulation, as a matter of substance, is collateral (or accessory) to a primary

stipulation in favour of one contracting party and the collateral stipulation, upon failure of

the primary stipulation, imposes upon the other contracting party an additional detriment

in the nature of a security for, and in terrorem of, the satisfaction of the primary

stipulation.

5. If the answer to either question 3 or 4 is yes, then further questions arise (at law and in

equity: see Andrews High Court at [77]) including:

5.1 Is the sum stipulated a genuine pre-estimate of damage?

5.2 Is the sum stipulated extravagant and unconscionable in amount in comparison

with the greatest loss that could conceivably be proved?

5.3 Is the stipulation payable on the occurrence of one or more or all of several events

of varying seriousness?

These questions are necessarily interrelated.

6. If the answer to question 5 is that the sum stipulated is not a genuine pre-estimate of

damage and is extravagant and unconscionable in amount in comparison with the greatest

loss that could conceivably be proved to have been sustained by the breach, or the failure

of the primary stipulation upon which the stipulation was conditioned, then the stipulation

is unenforceable to the extent that the stipulation exceeded that amount. Put another way,

the party harmed by the breach or the failure of the primary stipulation may only enforce

the stipulation to the extent of that party’s proved loss: Andrews High Court at [10].

16 Consideration of the matters listed in [15(5) and (6) above] (namely, is the stipulated sum

“extravagant and unconscionable”, and if so, what is the party’s proved loss?) are addressed last

because they are applicable at law and in equity.

12

B. COMMON LAW

17 The principles set out in Dunlop at 86-87 (confirmed in Ringrow Pty Ltd v BP Australia

Pty Ltd (2005) 224 CLR 656 at [12]) remain applicable. Those principles were not in issue,

and were not considered or affected by, the decision in Andrews High Court. The High Court did

not disapprove of any aspect of Dunlop and observed that Dunlop was a case in which “legal and

equitable remedies were sought by the plaintiff and the defendant raised the penalty doctrine in its

defence, illustrat[ing] the place of the penalty doctrine in a court where there is a unified

administration of law and equity but equitable doctrines retain their identity”: at [77].

18 The starting point therefore is Lord Dunedin’s speech in Dunlop at 86-87 (cited by the

High Court in Ringrow):

2. The essence of a penalty is a payment of money stipulated as in terrorem of the offending party; the essence of liquidated damages is a genuine covenanted pre-estimate of damage.

3. The question whether a sum stipulated is penalty or liquidated damages is

a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of as at the time of the making of the contract, not as at the time of the breach.

4. To assist this task of construction various tests have been suggested,

which if applicable to the case under consideration may prove helpful, or even conclusive. Such are:

(a) It will be held to be penalty if the sum stipulated for is

extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach.

(b) It will be held to be a penalty if the breach consists only in not

paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid. …

(c) There is a presumption (but no more) that it is penalty when

“a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage”.

On the other hand:

(d) It is no obstacle to the sum stipulated being a genuine pre-

estimate of damage, that the consequences of the breach are such as to make a precise pre-estimation almost an impossibility. On the contrary, that is just the situation when it is probable that pre-estimated damage was the true bargain between the parties.

(Citations omitted.)

13

19 In addition to those propositions, the following emerges from Dunlop:

1. The exercise involves an enquiry into the substance and the reality of the thing and the real

nature of the transaction to determine the object of the obligee in stipulating for the sum:

Lord Atkinson at 92.

2. Where the damages which may arise out of a breach of contract are of their nature

uncertain, the law permits the parties to agree beforehand on the amount to be paid on

breach in determining whether the sum being paid is a penalty. It will not be a bona fide

pre-estimate of damage if the sum stipulated is in excess of any actual damage which

could possibly or probably arise from the breach or if the parties have stipulated for the

payment of a larger sum in the event of a breach of an agreement for the payment of a

smaller sum: Lord Parker at 97.

3. Where the damage for the breach of a covenant to pay a fixed or definitely ascertainable

sum is capable of exact definition, the substitution of a larger sum for that smaller

ascertainable sum will not be a pre-estimate of damage, but a penalty: Lord Parmoor at

101-102.

20 Furthermore, as Mason and Wilson JJ stated in AMEV at 193-194, the question of whether

a clause is penal will depend on a number of circumstances including:

1. The degree of disproportion between the stipulated sum and the loss likely to be suffered

by the plaintiff, a factor relevant to the oppressiveness of the term to the defendant; and

2. The nature of the relationship between the contracting parties, a factor relevant to the

unconscionability of the plaintiff’s conduct in seeking to enforce the term.

Their Honours noted that the Courts should not, however, be too ready to find the requisite degree

of disproportion, lest they impinge on the parties’ freedom to settle for themselves the rights and

liabilities following a breach of contract: at 193-194.

21 Again, it is worth emphasising two propositions: (1) Whether a provision is a penalty at

law is a question of construction that must be determined as a matter of substance, viewing the

contract as a whole: O’Dea v Allstates Leasing System (WA) Pty Ltd (1983) l52 CLR 359 at 368,

375 and 399; and (2) The provision is judged at the time the contract was made, not at the time of

the breach: Dunlop at 86-87, O’Dea at 368; Lordsvale Finance Plc v Bank of Zambia [1996] QB

752 at 762; Ringrow at [12]; Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd

(No 2) (2012) 287 ALR 360 at [22].

14

C. IN EQUITY

22 This aspect of the judgment must be framed (initially) by reference to the decision in

Andrews High Court. It is necessary to understand what Andrews High Court decided and what it

did not decide. Indeed, what the Court decided is dictated by the way the separate questions had

been framed. The separate questions were cast as they were having regard to the decision in

Interstar Wholesale Finance Pty Ltd v Integral Home Loans Pty Ltd (2008) 257 ALR 292 both at

first instance and on appeal to the New South Wales Court of Appeal. In particular, as the High

Court pointed out, the substance of the questions was to ask whether the exception fees were

payable on breach and, in the alternative, to ask whether it had been the responsibility of the

applicants to see that the circumstances occasioning the imposition of the exception fees did not

arise. If there was an affirmative answer to either question, it was then asked whether the fees

were capable of being characterised as a penalty by reason of that fact.

23 The questions that had been framed in Andrews v Australia and New Zealand Banking

Group Ltd (2011) 211 FCR 53 (Andrews Trial), and were the subject of the appeal in Andrews

High Court, did not ask whether the fees were incapable of characterisation as penalties because

under pre-existing terms agreed between banker and customer the fees were charged in

consequence of the bank’s decision to afford or decline provision of further accommodation to the

customer. Because the separate questions were not framed to ask that last mentioned question,

the High Court did not decide that question. That conclusion is reinforced by the form and

content of paragraph 3 of the Orders in Andrews High Court which relevantly stated (at 238-239):

set aside orders 1 and 2 of the orders made by the Federal Court of Australia on 13 December 2011, and in their place declare that the circumstances: (a) that the honour, dishonour, non-payment and over limit fees were not

charged by the [ANZ] upon breach of contract by its customers, and (b) that the customers had no responsibility or obligation to avoid the

occurrence of events upon which these fees were charged, do not render these fees incapable of characterisation as penalties. (Emphasis added.)

24 What then did the High Court decide?

25 First, the penalty doctrine in equity has not been subsumed into the common law:

Andrews High Court at [51] and see also [13] above.

15

26 Second, the law of penalties was not confined to payments (or other obligations) imposed

upon breach of contract: Andrews High Court at [78]. As the Court explained at [10], in general

terms:

[A] stipulation prima facie imposes a penalty on a party (the first party) if, as a matter of substance, it is collateral (or accessory) to a primary stipulation in favour of a second party and this collateral stipulation, upon the failure of the primary stipulation, imposes upon the first party an additional detriment, the penalty, to the benefit of the second party.

See also Waterside Workers’ Federation of Australia v Stewart (1919) 27 CLR 119 at 128-129,

131-132 and Acron Pacific Ltd v Offshore Oil NL (1985) 157 CLR 514.

27 Third, as a matter of substance, the collateral or accessory stipulation operates “in the

nature of a security for, and in terrorem of, the satisfaction of the primary stipulation”: Andrews

High Court at [10] citing Rolfe v Peterson (1772) 2 Bro PC 436 at 442 [1 ER 1048 at 1052];

Dunlop at 86 (“search for truth”); cf, as to irrevocable letters of credit and “performance bonds”,

the proceeds of which are in substitution for performance by a contractor, Fletcher Construction

Australia Ltd v Varnsdorf Pty Ltd [1998] 3 VR 812; Mason, “‘I’ll have my bond; speak not

against my bond’: Constructive trusts and surplus proceeds from performance bonds” (2012) 6

Journal of Equity 74, at 81-83.

28 In other words:

1. The primary stipulation carries the substantive objective of the contract.

2. The collateral stipulation is engaged on the failure of the primary stipulation and fulfils the

function of acting as a security for, and in terrorem of, the satisfaction of that primary

stipulation.

3. The objective of the contract is achieved by payment of the money sum not being made

rather than by being made. The second party wants the primary stipulation observed,

not the payment of the penalty sum; the first party is so averse to paying the exorbitant

sum that it will observe the primary stipulation.

29 Fourth, if compensation can be made to the second party for the prejudice suffered by

failure of the primary stipulation, the collateral stipulation and the penalty are only enforced to the

extent of that compensation; the first party is relieved to that degree from liability to satisfy the

collateral stipulation: Andrews High Court at [10].

16

30 Fifth, the penalty doctrine is not engaged if the prejudice or damage to the interests of the

second party by the failure of the primary stipulation is insusceptible of evaluation and assessment

in money terms: Andrews High Court at [11]. This is not relevant in the present case. ANZ does

not contend that the prejudice or damage to it by the failure of the primary stipulation is

insusceptible of evaluation and assessment in money terms.

31 Sixth, the primary stipulation may be the occurrence or non-occurrence of an event which

need not be the payment of money: Andrews High Court at [12] and Story J, Commentaries on

Equity Jurisprudence as Administered in England and America, (13th ed, Boston: Little, Brown

and Company, 1886), vol 2 at [1314]. Seventh, the penalty imposed upon the first party upon

failure of the primary stipulation need not be a requirement to pay to the second party a sum of

money: Andrews High Court at [12].

32 Eighth, the distinction between a penalty and a genuine pre-estimate of liquidated damages

made by Lord Dunedin in Dunlop (see [18] above) was a product of equity and remained

applicable: Andrews High Court at [15]. In other words, equity will operate and equally the law

will operate so as to ensure that the only money that the second party gets is that which would

compensate for the financial prejudice occasioned by the actual failure of the stipulation.

Notions of extravagance and exorbitance are as much a part of equity as they are of the law itself.

D. FURTHER ACCOMMODATION / ADDITIONAL STIPULATION / ALTERNATIVE MODE OF PERFORMANCE

33 The analysis of the decision in Andrews High Court is not complete without reference to a

further issue identified by the Court. The further relevant issue was whether the requirement to

pay the fees was (in effect) to be regarded as security for performance by the customer of other

obligations to ANZ or was a fee charged in accordance with pre-existing arrangements according

to whether ANZ chose to provide further accommodation to the customer by ANZ authorising

payments upon instructions by the customer upon which ANZ otherwise was not obliged to act,

or refused that further accommodation. The Court described this as an “operative distinction”:

Andrews High Court at [80].

34 The High Court identified the operative distinction as that considered by the New South

Wales Court of Appeal in Metro-Goldwyn-Mayer Pty Ltd v Greenham [1966] 2 NSWR 717 at

723-724 and 727. There, Jacobs and Holmes JJA contrasted a stipulation attracting the penalty

doctrine with one giving rise consensually to an additional obligation.

17

35 As pointed out in Andrews High Court at [80], that operative distinction had been earlier

identified by Lord St Leonards in French v Macale (1842) 2 Drury and Warren 269 at 275-276:

[I]t appears, that the question for the Court to ascertain is, whether the party is restricted by covenant from doing the particular act, although if he do it a payment is reserved; or whether according to the true construction of the contract, its meaning is, that the one party shall have a right to do the act, on payment of what is agreed upon as an equivalent. If a man let meadow land for two guineas an acre, and the contract is, that if the tenant choose to employ it in tillage, he may do so, paying an additional rent of two guineas an acre, no doubt this is a perfectly good and unobjectionable contract; the breaking up the land is not inconsistent with the contract, which provides, that in case the act is done the landlord is to receive an increased rent.

See also Lord Loughborough in Hardy v Martin (1783) 1 Cox Eq Cas 26 at 27.

36 The distinction was adopted in Metro-Goldwyn-Mayer. In that case, the contract for the

hiring of films to exhibitors for public showing conferred the right to one screening only.

The exhibitor was obliged to pay for each additional screening a sum equivalent to four times the

original fee. Properly construed, the penalty doctrine had no application to the contract in issue.

Jacobs JA concluded at [723]:

There is no right in the exhibitor to use the film otherwise than on an authorised occasion. If he does so then he must be taken to have exercised an option so to do under the agreement, if the agreement so provides. The agreement provides that he may exercise such an option in one event only, namely, that he pay a hiring fee of four times the usual hiring fee.

Neither Metro-Goldwyn-Mayer nor Macale has been since cited or considered elsewhere.

37 The High Court referred to Pomeroy’s treatise under the heading “Stipulations not

Penalties – Alternative Stipulations” as having collected and discussed the English and United

States authorities in which the distinction thereafter was applied: see Pomeroy JN, A Treatise on

Equity Jurisprudence (5th ed, The Lawyers Co-operative Publishing Company, 1941) vol 2 at

[437]. In that section of the treatise, Pomeroy stated:

Such being the general test by which to determine the nature of a penalty, there are certain kinds of stipulations not unfrequently inserted in agreements which have been judicially interpreted and held not to be penalties, and therefore not subject to be relieved against by courts of equity. The nature and effect of these stipulations I shall briefly explain. The first instance is that of a contract by the terms of which the contracting party so binds himself that he is entitled to perform either one of two alternative stipulations, at his option; and if he elects to perform one of those alternatives, he promises to pay a certain sum of money, but if he elects to perform the other alternative, then he binds himself to pay a larger sum of money.

18

To state the substance of the agreement in briefer terms, the contracting party may do either of two things, but is to pay higher for one alternative than for the other. In such a case equity regards the stipulation for a larger payment, not as a penalty, but as liquidated damages agreed upon by the parties. It will not relieve the contracting party from the payment of the larger sum, upon his performance of the latter alternative to which such payment is annexed; nor, on the other hand, will it deprive him of his election by compelling him to abstain from performing whichever alternative he may choose to adopt. (Citations omitted and emphasis in original.)

38 The question therefore remains – as a matter of construction of the relevant contract,

was the requirement to pay the fee to be regarded as security for performance by the customer of

other obligations to ANZ or was it a fee charged in accordance with pre-existing arrangements

according to whether ANZ chose to provide something more and further to the customer;

for example, by ANZ authorising payments upon instructions by the customer upon which ANZ

otherwise was not obliged to act, or refusing further accommodation.

E. EXTRAVAGANT, EXORBITANT AND UNCONSCIONABLE

39 As noted at [14] above, there is a further and essential element for there to be a penalty at

common law and in equity – a stipulated sum will only be regarded as a penalty if it is extravagant

(or exorbitant) and unconscionable in amount: Dunlop at 86-87; Ringrow at [31]-[32]; see also

Story J, (1886), vol 2 at p 650-651; AMEV at 197 and 201 and Clydebank Engineering and

Shipbuilding Company v Don Jose Ramos Yzquierdo Y Castaneda [1905] AC 6 at 10 and 17.

40 In assessing whether a stipulation is a penalty, the difficulty in establishing the quantum of

the loss that might be suffered by reason of the breach (or failure of the primary stipulation) is

relevant. A stipulated payment is more likely to be regarded as a bargain between the parties pre-

estimating loss or compensation, and not as a penalty, when the consequences of the breach

(or failure of the primary stipulation) upon which the payment is due are difficult or impossible to

estimate: Clydebank at 11; Dunlop at 87-88, 95-96 and 104; Waterside at 128-129 and 132;

Yarra Capital Group Pty Ltd v Sklash Pty Ltd [2006] VSCA 109 at [13].

41 There is a distinction between a stipulation which is “extravagant and unconscionable” in

amount and one which is a “genuine covenanted pre-estimate of damage”. The latter expression

does not invite an inquiry into the parties’ states of mind at the time of the contract. The requisite

inquiry is objective. It necessitates an objective assessment of the possible loss that might be

incurred, not the subjective views or calculations of the parties prior to entering into the contract:

Yarra Capital at [13]; Leduva Pty Ltd v NM Structural Engineering Pty Ltd [2010] NSWSC 1164

19

at [109]. “Genuine covenanted pre-estimate of damage” is a descriptive phrase used to explain

that it is lawful for a contract to stipulate an amount payable upon the failure of a primary

stipulation as agreed damages or compensation, provided the amount is not penal in character:

Murray v Leisureplay plc [2005] EWCA Civ 963 at [111]. In Dunlop (at 86), the phrase was used

in contradistinction to the concept of “penalty”, not to suggest that that is where the focus of the

enquiry is.

42 As was said in Ringrow at [31]-[32]:

The law of contract normally upholds the freedom of parties, with no relevant disability, to agree upon the terms of their future relationships. As Mason and Wilson JJ observed in [AMEV]:

[T]here is much to be said for the view that the courts should return to … allowing parties to a contract greater latitude in determining what their rights and liabilities will be, so that an agreed sum is only characterised as a penalty if it is out of all proportion to damage likely to be suffered as a result of breach.

Exceptions from that freedom of contract require good reason to attract judicial intervention to set aside the bargains upon which parties of full capacity have agreed. That is why the law on penalties is, and is expressed to be, an exception from the general rule. It is why it is expressed in exceptional language. It explains why the propounded penalty must be judged “extravagant and unconscionable in amount”. It is not enough that it should be lacking in proportion. It must be “out of all proportion”. (Footnotes omitted and emphasis added.)

43 How then does equity and the common law distinguish between provisions that are penal

rather than compensatory? In AMEV, after acknowledging that equity and the common law have

long maintained a supervisory jurisdiction not to rewrite contracts imprudently made but to relieve

against provisions which are so unconscionable or oppressive that their nature is penal rather than

compensatory, the High Court stated that the test to be applied in drawing that distinction (at 193):

is one of degree and will depend on a number of circumstances, including (1) the degree of disproportion between the stipulated sum and the loss likely to be suffered by the plaintiff, a factor relevant to the oppressiveness of the term to the defendant, and (2) the nature of the relationship between the contracting parties, a factor relevant to the unconscionability of the plaintiff’s conduct in seeking to enforce the term.

That test was subject to an important qualification that “[t]he courts should not, however, be too

ready to find the requisite degree of disproportion lest they impinge on the parties’ freedom to

settle for themselves the rights and liabilities following a breach of contract”: at 193-194.

20

44 In assessing whether the stipulated sum is extravagant and unconscionable in amount in

comparison to the maximum loss that might be suffered from the breach (or failure of the primary

stipulation), the Court may receive evidence addressing the quantum of loss that may have been

suffered, assessed as at the date of contract: Elberg v Fraval [2012] VSC 342 at [99]ff citing

Robophone Facilities v Blank [1966] 1 WLR 1428.

45 That task is simply stated but not necessarily straightforward. It is for the Applicants to

prove that the stipulated sum was extravagant and unconscionable but, as ANZ sought to do here,

that does not prevent ANZ from seeking to establish that the stipulated sum was not extravagant

and unconscionable: Clydebank at 16 and Ringrow at [27]. A calculation of the maximum loss

that might be suffered from the non-performance of a primary stipulation involves a forward-

looking or hypothetical assessment.

F. LOSS AND DAMAGE

46 If a stipulation is found to be a penalty, the Court will relieve the burdened party of the

penalty provided the prejudice or damage to the interests of the other party is susceptible of

evaluation and assessment in money terms: Andrews High Court at [11] and [12]. The “equity”

upon which a Court will intervene is generated by the availability of compensation to the party in

whose favour the stipulation is made. In Andrews High Court, the High Court observed that the

principle was illustrated by Waterside. Here, ANZ did not contend that the losses or costs that

might be suffered by ANZ from the transactions or events that gave rise to its entitlement to

charge the Applicants the Exception Fees (Exception Fee Events) were impossible to assess.

It did contend that such an assessment, on an ex ante basis, would have been very complex and

expensive. But that is no answer.

47 Moreover, ANZ accepted that damages will not be refused merely because the calculation

or estimation of loss is difficult or because the circumstances do not permit the loss to be assessed

with certainty: Fink v Fink (1946) 74 CLR 127 at 143; McRae v Commonwealth Disposals

Commission (1951) 84 CLR 377 at 411; Air Express v Ansett Transport Industries (Operations)

Pty Ltd (1979) 146 CLR 249 at 284 and Commonwealth v Amann Aviation Pty Ltd (1991) 174

CLR 64 at 83; see also Sony Computer Entertainment Australia Pty Ltd v Stirling [2001] FCA

1852 at [7] and La Trobe Capital & Mortgage Corporation Ltd v Hay Property Consultants Pty

Ltd (2011) 190 FCR 299 at [90], [95] (value of the loss must be estimated no matter how difficult

the task and even if some guesswork and speculation required) and [110] (sufficient for a party to

21

prove on the balance of probabilities that it suffered some loss or damage and the quantum of the

loss or damage to be calculated even where it is impossible to be precise).

48 Next, a stipulation that is found to be a penalty is unenforceable only to the extent that the

amount stipulated to be paid exceeded the quantum of the relevant loss or damage which can be

proved to have been sustained by the breach, or the failure of the primary stipulation, upon which

the stipulation was conditioned: AMEV at 199-203. Put another way, the party harmed by the

breach or the failure of the primary stipulation may enforce the stipulation that is found to be a

penalty to the extent of that party’s loss: Andrews High Court at [10]. Equity assesses the

quantum of loss or compensation based on what is just and equitable, or fair and reasonable, in all

the circumstances. The loss may include costs incurred in securing payment of the amount owing,

including costs of the proceeding: Johnes v Johnes (1814) 3 ER 969 at 975. Here, ANZ charged

the Exception Fees to the Applicants. The Applicants seek repayment of those Exception Fees.

It was common ground that (1) the Applicants, as the parties seeking to resist the enforcement of

the Exception Fee Provisions, bear the onus of proving on the balance of probabilities that the

Exception Fee Provisions are a penalty; but (2) if the Exception Fee Provisions are found to be

penalties, ANZ bears the onus of establishing that it has suffered loss from the Exception Fee

Events and the quantum of that loss.

PART 5: SPECIFIC CONTRACTS AND TERMS

A. INTRODUCTION

49 For each Exception Fee, the contractual documents are listed in the column entitled

“Contracts” in Annexure 1 and set out in detail in Annexure 2. The specific provision or

provisions by which each Exception Fee was charged is identified in the column entitled “Extract

of Specific Exception Fee Provision” in Annexure 1. It was common ground that those

contractual documents comprised a contract between ANZ and the relevant Applicant.

50 There were two relevant time periods – prior to December 2009 and after December 2009.

The two time periods were relevant because ANZ amended the Exception Fee Provisions in

December 2009. Within each period, there are three sub-categories – Card Accounts, Saving

Accounts and a Business Account.

22

B. PRE-DECEMBER 2009

(1) Card Accounts 9522 and 9629

51 Mr Paciocco was charged 10 Card Exception Fees – eight Late Payment Fees

(on 4 September 2006, 4 March 2007, 5 August 2007, 4 November 2007, 6 April 2008, 6 July

2008, 4 August 2008 and 4 February 2009) and two Overlimit Fees (on 12 August 2009 and

6 September 2009).

(a) Card Account 9522 – Late Payment Fee (Exception Fees 4-11)

52 The Late Payment Fee of $35 charged on 4 September 2006 on Card Account 9522

(Exception Fee 4) was the first Exception Fee charged.

53 The relevant contractual documents comprised a Letter of Offer dated 16 June 2006

(para 4 of Annexure 2), ‘ANZ Credit Card Conditions of Use’ dated September 2006 (para 5 of

Annexure 2) (September 2006 Conditions of Use) and ‘ANZ Personal Banking Account Fees

and Charges’ dated August 2006 (August 2006 Fees and Charges Booklet) (para 6 of Annexure

2).

54 The Letter of Offer dated 16 June 2006, under the heading “Minimum Repayment”, stated:

Each month you are required to pay [the amount] by the Due Date shown on [the] statement of account.

55 The September 2006 Conditions of Use similarly stated:

The account holder must make the ‘Minimum Monthly Payment’ shown on each statement of account by the ‘DUE DATE’ shown on that statement of account.

56 Under the heading “Credit Fees and Charges”, the Letter of Offer went on to state:

Late Payment Fee: A fee of $35 will be charged to your credit card account if the “Monthly Payment” plus any “Amount Due Immediately” shown on the statement of account is not paid within 28 days of the end of the “Statement Period” shown on that statement.

57 The Late Payment Fee was imposed by the August 2006 Fees and Charges Booklet:

Late Payment Fee $35 Charged to ANZ Low Rate MasterCard … if the “Monthly Payment” plus any “Amount Due Immediately” shown on the statement of account is not paid within 28 days of the end of the “Statement Period” shown on that statement.

23

58 The other Late Payment Fees charged to Mr Paciocco prior to December 2009

(Exception Fees 5-11) were charged pursuant to different contractual documents. There is no

dispute that the terms in those documents were not materially or substantively different from those

applicable to Exception Fee 4.

(b) Card Account 9629 – Overlimit Fee (Exception Fee 12) and Card Account 9522 – Overlimit Fee (Exception Fee 13)

59 For the Overlimit Fee on Card Account 9629 and the Overlimit Fee on Card Account

9522, the contractual documents comprised:

1. in relation to the Exception Fee on 12 August 2009 on Card Account 9629 (Exception Fee

12), a Letter of Offer dated 24 July 2009 (para 7 of Annexure 2); and

2. in relation to the Exception Fee on 6 September 2009 on Card Account 9522

(Exception Fee 13), the Letter of Offer dated 16 June 2006 (para 4 of Annexure 2);

3. in relation to both Exception Fees:

(a) ‘ANZ Credit Cards Conditions of Use’ dated July 2009 (July 2009 Conditions of

Use) (para 8 of Annexure 2); and

(b) ‘ANZ Personal Banking Account Fees and Charges’ dated July 2009 (July 2009

Fees and Charges Booklet) (para 9 of Annexure 2).

60 The July 2009 Conditions of Use stated in cl 2:

The Credit Limit (a) Your credit limit is set out in the Letter of Offer and is for the credit card

account. If ANZ issues more than one credit card for use on your credit card account no separate limit applies for each credit card. The account holder can ask ANZ to increase or decrease the credit limit at any time. ANZ is not required to agree to any request to increase the credit limit. ANZ is not required to agree to any request to decrease the credit limit if the decrease would result in the outstanding balance exceeding the credit limit.

(b) You must not exceed the credit limit unless ANZ has consented in writing

or ANZ otherwise authorises the transaction which results in the account holder’s outstanding balance exceeding the credit limit. By authorising a transaction which results in the account holder’s outstanding balance exceeding the credit limit, ANZ is not increasing the account holder’s credit limit. If you exceed your credit limit, you must pay the amount by which the outstanding balance exceeds the credit limit immediately.

(c) Any withdrawal, transfer or payment from the credit card account will be

made firstly from any positive (Cr) balance and secondly from any available credit in the credit card account.

24

(Emphasis added.)

61 Both Letters of Offer, under the heading “Credit Fees and Charges”, stated:

Overlimit Fee: A fee of $35 will be charged to your credit card account at the end of the “Statement Period” shown on the statement of account if the balance of the account exceeds the “Credit Limit” during that statement period. Charged at a maximum of once per statement period.

[Note that the Letter of Offer dated 24 July 2009 stated that “A fee of $35* will be charged…” and “… account exceeds the “Credit Limit”# during that statement period…”. Neither party contended that the matters referred to in the “*” or “#” had any substantive relevance to this case.]

62 The July 2009 Fees and Charges Booklet imposed the fee:

Overlimit Fee $35 Charged at the end of the “Statement Period” shown on the statement of

account if the balance of the account exceeds the “Credit Limit” during that statement period …

Charged at a maximum of once per “Statement Period”

(2) Saving Account 156 (Exception Fees 1, 2 and 3)

63 Mr Paciocco was charged three Exception Fees on Saving Account 156 – a Saving Honour

Fee on 15 September 2008 (Exception Fee 1), a Non-Payment Fee on 26 September 2008

(Exception Fee 2) and a Non-Payment Fee on 27 January 2009 (Exception Fee 3). All three

Exception Fees were charged pursuant to the same contractual documents: A Signature Card for

opening Saving Account 156 dated 10 June 1997 (para 1 of Annexure 2), ‘ANZ Saving &

Transaction Products – Terms and Conditions dated August 2008’ (August 2008 Terms and

Conditions) (para 2 of Annexure 2) and ‘ANZ Personal Banking Account Fees and Charges’

dated August 2008 (August 2008 Fees and Charges Booklet) (para 3 of Annexure 2).

64 The Honour Fee and then the Non-Payment Fees will be considered.

(a) Honour Fee (Exception Fee 1)

65 Clause 2.12 of the August 2008 Terms and Conditions for Saving Account 156 provided:

Provision of Credit ANZ does not agree to provide any credit in respect of your account without prior written agreement. Depending on your account type, credit can be provided

25

through an ANZ Equity Manager facility, an Overdraft facility or an ANZ Assured facility. It is a condition of all ANZ accounts that you must not overdraw your account without prior arrangements being made and agreed with ANZ. … If a debit would overdraw your account, ANZ may, in its discretion, allow the debit on the following terms: • interest will be charged on the overdrawn amount at the ANZ Retail Index

Rate plus a margin (refer to ‘ANZ Personal Banking Account Fees and Charges’ booklet for details);

• an Honour Fee may be charged for ANZ agreeing to honour the transaction which resulted in the overdrawn amount (refer to ‘ANZ Personal Banking Account Fees and Charges’ booklet for details);

• the overdrawn amount, any interest on that amount and the Honour Fee will be debited to your account; and

• you must repay the overdrawn amount and pay any accrued interest on that amount and the Honour Fee within seven days of the overdrawn amount being debited to your account. …

(Emphasis added.)

66 The imposition of the Honour Fee was also addressed in the August 2008 Fees and

Charges Booklet:

Honour Fee Payable on each occasion that ANZ honours a drawing where sufficient

cleared funds are not available in the account or when the credit limit on your account is exceeded. $35

… The Honour Fee is payable on the date of the excess and drawings include those made at a branch, by cheque, or electronic banking. Electronic banking includes Internet, Phone, EFTPOS, Periodical Payments, Direct Debits and ATMs.

(b) Saving Account 156 – Non-Payment Fees (Exception Fees 2 and 3)

67 Clause 2.7 of the August 2008 Terms and Conditions provided:

A Periodical Payment Non-Payment Fee is charged if you have authorised a Periodical Payment that is not made because there are insufficient cleared funds in your account.

26

68 The imposition of the Non-Payment Fee was also addressed in the August 2008 Fees and

Charges Booklet. For “Periodical Payments”, it stated that the “Non-payment fee” was $35.

(3) Business Account 58555

69 SDG did not claim any Exception Fees on Business Account 58555 before December

2009.

C. POST DECEMBER 2009

(1) Saving Account 156

70 Mr Paciocco does not claim any Exception Fees on Saving Account 156 after December

2009.

(2) Card Accounts 9522 and 9629

71 Mr Paciocco was charged 37 Card Exception Fees – 18 Late Payment Fees on different

dates between 12 January 2010 and 12 August 2013 and 19 Overlimit Fees on different dates

between 12 May 2010 and 4 September 2013.

(a) Late Payment Fees (Exception Fees 14, 16-18, 23, 27, 28, 31, 34, 36, 37, 38, 41, 42, 45, 46, 47 and 49)

72 For the Late Payment Fee on 12 January 2010 on Card Account 9629 (Exception Fee 14),

the contractual documents comprised the Letter of Offer dated 24 July 2009 (para 10 of Annexure

2), ‘ANZ Credit Cards Conditions of Use’ dated December 2009 (December 2009 Conditions of

Use) (para 11 of Annexure 2) and ‘ANZ Personal Banking Account Fees and Charges’ dated

December 2009 (December 2009 Fees and Charges Booklet) (para 12 of Annexure 2).

73 The 24 July 2009 Letter of Offer, under the heading “Credit Fees and Charges”, stated:

Late Payment Fee A fee of $35* will be charged to your credit card account if the “Monthly Payment” plus any “Amount Due Immediately” shown on the statement of account is not paid within 28 days of the end of the “Statement Period” shown on that statement.

[Note that the material referred to in the asterisk had no substantive relevance to this case.]

74 The fee level was set in the December 2009 Fees and Charges Booklet:

Late Payment Fee $20 Charged to your credit card account if the “Minimum Monthly Payment” plus

27

any amount “Payable Immediately” shown on the statement of account is not paid by the “Due Date” shown on that statement.

75 The other Late Payment Fees charged on the Card Accounts after December 2009 were

charged pursuant to different contractual documents. There is no dispute that the terms in those

documents were not materially or substantively different from those applicable to Exception Fee

14.

(b) Overlimit Fees (Exception Fees 15, 19-22, 24-26, 29, 32, 33, 35, 39, 40, 43, 44, 48 and 50)

76 For the Overlimit Fee charged on 12 May 2010 on Card Account 9629 (Exception Fee 15),

the contractual documents comprised the Letter of Offer dated 24 July 2009 (para 10 of Annexure

2), ‘ANZ Credit Cards Conditions of Use’ dated March 2010 (March 2010 Conditions of Use)

(para 13 of Annexure 2) and the December 2009 Fees and Charges Booklet (para 12 of Annexure

2).

77 Clause 2 of the March 2010 Conditions of Use stated:

The Credit Limit (a) Your credit limit is set out in the Letter of Offer and is for the credit card


(b) From time to time, there may be a debit made to your credit card account

which, if processed, would temporarily result in the outstanding balance exceeding your credit limit. ANZ has an Informal Overlimit service to help you in these circumstances.

(c) When a debit is initiated which, if processed, would result in the

outstanding balance temporarily exceeding your credit limit, you make a request for an Informal Overlimit amount. ANZ will consider your request for an Informal Overlimit amount and, if both the debit and the account holder satisfy ANZ’s credit criteria for Informal Overlimit amounts, ANZ will allow the debit to be processed as an Informal Overlimit amount, on the following terms:

• interest will be charged on the Informal Overlimit amount at the

applicable interest rate for purchases, cash advances and other payments (see Condition (19));

• an Overlimit Fee will be charged (refer to the Letter of Offer for

28

details); • the Informal Overlimit amount, any interest on that amount and

any Overlimit Fees will be debited to your credit card account; and

• you must repay the Informal Overlimit amount on the earlier of:

- the time shown for payment of ‘Overdue/Overlimit’ amount on the next statement of account after the Informal Overlimit amount is debited to your credit card account; and

- the day that is 60 days after the day on which the Informal

Overlimit amount is debited to your credit card account. (d) By processing a debit as an Informal Overlimit amount, ANZ is not

increasing the account holder’s credit limit. (e) Any withdrawal, transfer or payment from the credit card account will be

made firstly from any positive (Cr) balance and secondly from any available credit in the credit card account. An Informal Overlimit amount will only be provided if there is no available credit in the credit card account and both the debit and the account holder satisfy ANZ’s criteria for Informal Overlimit amounts.

(f) If you want to avoid exceeding your credit limit, you should ask ANZ:

- how to have ANZ decline transactions you initiate that will take you over your credit limit – please note that this service is not available for all transaction types (for example, it is not available for a transaction that is not electronically authorised such as a purchase that is manually debited to your credit card account if EFTPOS is not available). Please ask for our Overlimit Credit Card Opt Out Form;

- about ways in which you can monitor the balance of your credit

card account; or - if you have longer-term, ongoing borrowing needs, how to apply

for an increase to the account holder’s credit limit or for information about other products that may suit your needs.

(Emphasis added.)

78 The ‘ANZ Personal Banking Account Fees and Charges’ dated November 2011

(November 2011 Fees and Charges Booklet) set the fee for Overlimit Fees 19-22 and 24-26.

There was no dispute that the relevant Exception Fee Provisions in the December 2009 Fees and

Charges Booklet and the November 2011 Fees and Charges Booklet were not materially or

substantively different. They provided:

29

Overlimit Fee $20 Charged to your credit card account at the end of the “Statement Period”

shown on the statement of account if we agree to provide an Informal Overlimit amount during that statement period. The Overlimit Fee is charged at a maximum of once per statement period.

79 The other Overlimit Fees charged on the Card Accounts in this period were charged

pursuant to different contractual documents. Some of the provisions were redrafted. In the ‘ANZ

Credit Cards Conditions of Use’ dated June 2010 (para 14 of Annexure 2) (and in all subsequent

versions) a preamble was added to the document under the heading “Important things to know

about using your ANZ credit card”, which included the following:

Fees We tell you which fees can apply to your credit card account in the Letter of Offer that we sent to you, and you can also find these in the ANZ Personal Banking Account Fees and Charges booklet which is available on anz.com or at any ANZ branch. Some of the key fees you need to know are below: … Fees that apply when you do something, or request us to do something for you We provide you with services on your credit card account and sometimes there are fees for doing so. The most common service fees are: …

• Late Payment Fee

• Overlimit Fee (not applicable to ANZ Visa PAYCARD and ANZ Rewards Visa PAYCARD accounts, or if you hold an ANZ Access Basic Account)

You can avoid some of these fees:

You can avoid a Late Payment Fee by paying the Minimum Monthly Payment shown on your statement by the due date

• We have convenient services available to you that make it easy to make

your minimum payment on time such as CardPay Direct – please ask us for details.

You can avoid an Overlimit Fee by staying within your approved credit limit • We tell you what your credit limit is on your Letter of Offer that we sent

you, and it’s also shown on your monthly account statement

30

• Sometimes you might have a transaction that temporarily causes you to

exceed your credit limit. In this situation, we want to help you avoid embarrassing moments such as being declined while purchasing your groceries. Where you and the transaction which would exceed your credit limit satisfy our criteria, we will provide you with a convenient service to cover your payment needs – we call this service an Informal Overlimit facility. An Overlimit Fee will be charged for this service.

• You can also ask us to decline certain transactions so that you don’t exceed your credit limit. Please see clause 2 in this booklet for further information.

80 For some of the Overlimit Fees (Exception Fees 29, 30, 32, 33 and 35), the Fees and

Charges Booklet was amended with effect from June 2012 (para 15 of Annexure 2) as follows:

Overlimit Fee $20 A. Charged to your credit card account at the end of the “Statement Period”

shown on the statement of account where:

• any type of debit is initiated on your credit card account that would cause you to exceed your credit limit during the Statement Period; and

• we agree to provide you with an Informal Overlimit amount to

allow this debit to be charged to your credit card account.

81 For Exception Fees 39, 40, 43 and 44, the Fees and Charges Booklet was amended with

effect from March 2013 and for the balance of the Overlimit Fees (Exception Fees 48 and 50),

the Fees and Charges Booklet was amended with effect from July 2013. No party suggested that

there was any material or substantive difference between the documents.

(3) Business Account 58555

82 SDG was charged 22 Business Exception Fees – 12 Business Honour Fees (charged on

different dates between 4 March 2010 and 23 July 2013) and 10 Business Dishonour Fees

(charged on different dates between 8 January 2013 and 18 April 2013).

(a) Honour Fees (Exception Fees 51 and 52)

83 For the Business Honour Fees charged on 4 March 2010 and 9 July 2010 (Exception Fees

51 and 52), the contractual documents comprised a Signature Card regarding the opening of

Business Account 58555 dated 15 December 2008 (para 16 of Annexure 2), a Company/Formal

Trust Account Authority for the account dated 15 December 2008 (para 17 of Annexure 2),

‘Business Transaction Accounts Terms and Conditions – ANZ Business Banking’ dated

31

December 2009 (December 2009 Terms and Conditions) (para 18 of Annexure 2) and

‘Transaction Accounts Fees and Charges – ANZ Business Banking’ dated December 2009

(December 2009 Business Fees and Charges Booklet) (para 19 of Annexure 2).

84 One of the applicable provisions in the December 2009 Business Terms and Conditions

provided:

If you satisfy ANZ’s credit criteria for an Informal Overdraft facility, ANZ will agree to your request by allowing the debit to be processed as an Informal Overdraft, on the following terms: If the balance of your Informal Overdraft facility exceeds $50 at the time of

your request, or will exceed $50 once the debit requested is processed, you will be charged an Informal Overdraft Assessment Fee on the day on which the debit is processed (or if that day is not a business day, on the next business day). The Informal Overdraft Assessment Fee (referred to in your bank statements and in the ‘ANZ Business Banking Transaction Accounts Fees and Charges’ booklet as an ‘Honour Fee’) is payable immediately.

85 The Honour Fee was set by the December 2009 Business Fees and Charges Booklet as

follows:

Honour Fee $37.70 Charged for considering a request for an Informal Overdraft where you satisfy ANZ’s credit criteria for an Informal Overdraft, and the balance of your Informal Overdraft facility exceeds $50 at the time of your request or will exceed $50 after the debit requested has been processed.

(b) Other Honour Fees (Exception Fees 53-61 and 72)

86 For Exception Fees 53-61 and 72, the contractual documents comprised the documents at

[83] above (or materially and substantively the same documents) as well as ‘Finance Conditions

of Use – ANZ Business Banking’ dated August 2011 (para 22 of Annexure 2) (or a later version

which was materially and substantively the same) and ‘Finance Fees and Charges –

ANZ Business Banking’ dated December 2009 (or a later version which was materially and

substantively the same).

87 For Exception Fees 53 and 54, the applicable provisions included the two provisions

extracted at [84]-[85] above as well as the terms of an Overdraft Facility Letter of Offer for

$10,000 dated 28 April 2011 (para 20 of Annexure 2) which stated:

A fee is charged if the balance of your Overdraft facility exceeds $50 or will exceed $50 after a requested debit has been processed. This fee is for considering

32

a request for an Informal Overdraft where you satisfy ANZ’s credit criteria.

88 For Exception Fees 55-61 and 72, the applicable provisions again included the two

provisions extracted at [84]-[85] above. The Overdraft increased to $49,999 pursuant to an

Overdraft Facility Letter of Offer dated 29 November 2011 (para 21 of Annexure 2). The relevant

provision from that Letter of Offer provided that “[a]n Honour Fee of $37.70 is payable if ANZ

pays drawings on your account in excess of the Facility Limit. This fee is payable on the date of

the excess drawing”.

(c) Dishonour Fees (Exception Fees 62-71)

89 For Exception Fees 62-71, the contractual documents comprised the documents at [86]

above (or materially and substantively the same documents) as well as the Overdraft Facility

Letter of Offer dated 29 November 2011 at [88] above.

90 The parties accepted that the contractual documents were materially and substantively

similar to the December 2009 Terms and Conditions and the December 2009 Business Fees and

Charges Booklet: see [83] above. The December 2009 Terms and Conditions provided:

At the Bank’s discretion, a cheque may be dishonoured or payment refused where: there are insufficient funds in the account of the drawer;

… ANZ may charge a dishonour fee. … If you do not satisfy ANZ’s credit criteria for an Informal Overdraft, ANZ will decline your request and will not allow the debit to be processed. You will be charged an Informal Overdraft Assessment Fee (referred to in your bank statements and in the ‘ANZ Business Banking Transaction Accounts Fees and Charges’ booklet as an ‘Outward Dishonour Fee’) and this fee is payable immediately.

91 The December 2009 Business Fees and Charges Booklet provided:

Outward Dishonour Fee $37.70 per dishonour Charged for considering a request for an Informal Overdraft where you do not satisfy ANZ’s credit criteria for an Informal Overdraft.

D. OTHER RELEVANT CONSIDERATIONS - THE WIDER FRAMEWORK

92 It was common ground that the contractual documentation in issue in these proceedings

operated in, and formed part of, a wider framework. Aspects of that wider framework

33

(the applicable regulatory framework) were considered in Andrews Trial at [87]-[134]. It is

unnecessary to repeat that analysis.

93 However, as part of the wider framework, reference also must be made to the established

principles concerning the relationship of banks and their customers. These were summarised in

Andrews Trial at [81]-[82] (see also BMP Global Distribution Inc v Bank of Nova Scotia [2009] 1

SCR 504 at [47]-[48]) as follows:

It is trite that the relationship between a banker and a customer is in contract: Foley v Hill (1848) 2 HL Cas 28. Such contracts have been described as:

… ordinary commercial contracts to be construed and applied according to their terms, and in accordance with a ‘basic principle of the common law of contract … that parties to a contract are free to determine for themselves what primary obligations they will accept’.

Williams and Glyn’s Bank v Barnes [1981] Com LR 205 at 209 (quoting Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 at 848) cited with approval in Narni Pty Ltd v National Australia Bank [2001] VSCA 31 at [19].

Unsurprisingly, the contractual terms are important; it is a contract usually with many terms (Joachimson v Swiss Bank Corporation [1921] 3 KB 110 at 127) but from which the following core banking law principles derive:

1. A savings or deposit account is in law a loan to the banker: Pearce v

Creswick (1843) 2 Hare 286; Dixon v Bank of New South Wales (1896) 17 LR (NSW) Eq 355; Khan v Singh [1936] 2 All ER 545. The bank borrows the money and proceeds from the customer and undertakes to repay them on demand. The bank’s undertaking includes a promise to pay any part of the amount due against the written order of the customer addressed to the branch of the bank where the account is kept: Joachimson at [127]. Conversely, the bank will not pay any part of the amount due to the customer without such an order or some other compulsion or entitlement recognised by law;

2. The issue of a cheque by a customer, or the giving of a payment

instruction or withdrawal request to its bank, which would have the effect of overdrawing a customer’s account, is construed as a request by the customer for an advance or loan from the bank, and the bank has a discretion to approve or disapprove the loan: Cuthbert v Robarts, Lubbock & Company [1909] 2 Ch 226 at 233; Barclays Bank Ltd v W J Simms Son & Cooke (Southern) Ltd [1980] 1 QB 677 at 699-700; Ryan v Bank of New South Wales [1978] VR 555 at 577; Narni Pty Ltd v National Australia Bank Ltd [1998] VSC 146 at [37] and Narni Pty Ltd v National Australia Bank Ltd [2001] VSCA 31 at [21];

3. A written order by a customer which requires the bank to pay a greater

amount than the balance standing to the credit of the customer may be declined. There is no obligation on the bank to pay a cheque unless there is a sufficient balance in the account to pay the entire amount or unless overdraft arrangements have been made which are adequate to cover the

34

amount of the cheque: Bank of New South Wales v Laing [1954] AC 135 at [154]; Office of Fair Trading v Abbey National plc [2008] EWHC 875 (Comm) at [45] and Narni [2001] VSCA 31 at [12];

4. If a customer with no express overdraft facility draws a cheque which

causes his account to go into overdraft, the customer, by necessary implication, requests the bank to grant an overdraft on its usual terms as to interest and other charges: Lloyds Bank plc v Voller [2000] 2 All ER (Comm) 978 at 982.

See also Weaver GA and Craigie CR, The Law Relating to Banker and Customer in Australia, (Thompson Lawbook Co) at [2.140] (update 62).

94 The Applicants accepted that characterisation of the relationship between banker and

customer but contended that its relevance was merely historical. The contention that these

established principles concerning the relationship of banks and their customers are merely

historical is rejected. It is rejected because the proper construction of the relevant terms of each

contract is in accordance, and entirely consistent, with those established principles. It is therefore

unnecessary to imply any contractual term into the applicable contractual terms to incorporate

these established principles. Thirdly, these findings, described as “significant findings” by the

High Court in Andrews High Court were not the subject of challenge in, or disturbed by, the High

Court in Andrews High Court.

95 The Applicants also placed reliance on what they described as the “inherent

circumstances” of each contract including that:

1. When each contract was made (see [9]-[10] above), the terms were not negotiated between

either of the Applicants and ANZ, but were contained in documentation provided

unilaterally by ANZ.

2. When each contract was made, other banks charged fees similar to the Exception Fees.

(A summary of the exception fees charged by the other banks was tendered by agreement.

That summary establishes that other banks charged what appeared to be fees substantively

similar to the Exception Fees.)

3. Under each contract between ANZ and either of the Applicants, ANZ had the right

unilaterally to vary the terms and conditions of each contract (including the amount of any

Exception Fee, and the circumstances which defined the entitlement to charge it):

see paras 2, 4, 5, 7, 18 and 22 of Annexure 2. ANZ admitted that it unilaterally varied the

terms relatively frequently.

35

4. ANZ determined the quantum of each Exception Fee included in each contract and did not

do so by reference to the amount that would have been recoverable as unliquidated

damages.

96 That list was, and is, not complete. ANZ accepted that these circumstances existed but

referred to the following additional facts and matters, that while specific to ANZ, necessarily arise

out of the inherent relationship between banker and customer. The other inherent circumstances

extended to (1) the manner in which the relevant accounts or contracts were offered, entered into

and administered by ANZ and (2) the other accounts or facilities available to ANZ’s customers.

97 The nature and size of ANZ’s business dictated the nature and manner in which the

relevant contracts were offered, entered into and administered. As at July 2011, ANZ had

approximately 6 million retail deposit accounts; in August 2011, ANZ had around 2 million

consumer credit card accounts; and as at June 2011, over 520,000 transaction, saving, investment

and lending accounts were held by ANZ’s business customers.

98 Customers were able to open accounts with ANZ at a branch and could apply to open most

accounts over the phone or online. ANZ offered accounts on standard terms and conditions.

ANZ provided the customer with documentation containing information on the terms and

conditions relating to the account. That documentation typically included a welcome letter,

a statement of the relevant terms and conditions for the account type and a statement of the fees

and charges applicable to the account. Similarly, the saving, card and business accounts were

terminable at will by the customer. There was no obligation upon the customer to retain the

account or to undertake transactions on the account. If the account was in a debit position at the

time of termination, the outstanding balance would need to be repaid. However, that circumstance

would not require the customer to continue to undertake transactions on the account.

99 In relation to exception fees, ANZ addressed them in the account terms and conditions and

fees and charges booklets provided at the time the account was opened, in leaflets provided to

account holders with statements of account and if an account holder incurred an honour fee, in a

letter sent to that account holder explaining the fee and how to avoid future fees.

100 Customers who did not wish to incur exception fees on their accounts from an overdraw

transaction could take steps to avoid the fees. Customers could monitor their account balance and

avoid undertaking transactions that would overdraw the account: cf Commonwealth Trading

Bank of Australia v Sydney Wide Stores Proprietary Limited (1981) 148 CLR 304.

36

Customers with saving accounts and business accounts could “switch off” or opt out of the ability

to overdraw their account. The “switch off” or opt out mechanism prevented a customer from

being able to overdraw their account when using ANZ’s internet and phone banking, ATMs and

EFTPOS. Transactions that would overdraw the account would be automatically declined and no

dishonour fee would be charged. The switch off facility did not operate if the transaction was an

offline EFTPOS or ATM transaction or in the case of direct debits, cheques or periodic payments.

101 Since 1 December 2007, card account customers could opt out of the ability to exceed the

credit limit on their card account. This switched off the monetary limit on overdrawing known as

the “shadow limit”. Two shadow limits apply to a transaction account at any one time – the Batch

Excess Shadow Limit (which applies to direct debit, cheque and certain periodical payment

transactions) and the Online Excess Shadow Limit (which applies to ATM, EFTPOS, internet

banking and phone banking transactions). Shadow limits are recalculated at an account’s monthly

cycle point and additionally upon the occurring of a ‘trigger event’ such as the overdrawing of an

account. If a customer adopted the opt out facility, transactions that would exceed the customer’s

credit limit would be automatically declined at the time that an electronic authorisation request

was received by ANZ. It was not however a complete solution. The opt out facility was not

available for transactions not authorised online by ANZ and or some recurring payment

arrangements. If those latter transactions resulted in the account exceeding the credit limit,

an overlimit fee could still be charged.

102 Consistent with the nature and size of ANZ’s business, it offered different types of

accounts and facilities. For saving accounts, ANZ offered a number of accounts that did not

permit or limited the ability to overdraw, for example the Access Limited account. ANZ also

offered various loan and credit facilities, including overdraft facilities, to both retail and business

customers. So, for example, the primary loan products to retail customers were ANZ Assured,

ANZ Personal Overdrafts and ANZ Temporary Overdrafts. ANZ Assured was an overdraft

product that provided the customer with a credit limit of $500 or $1,000 which attached to the

customer’s account. As at August 2011, the credit facility fee for the ANZ Assured product was

$60 per year (in addition to interest charges). The Personal Overdraft product was a line of credit

that attached to the customer’s account, being a minimum overdraft of $1,000. ANZ charged both

a loan approval fee and a credit facility fee (in addition to interest for the personal overdraft).

The Temporary Overdraft product was a line of credit that was limited to 30 days. The charges

for a Temporary Overdraft comprised a loan approval fee (and interest). For business account

deposit accounts, ANZ supplied two types of overdraft: the ANZ Business Overdraft and the

37

Temporary Overdraft. The minimum amount of credit extended for a Business Overdraft was

$2,000. ANZ charged a loan application fee and an annual credit facility fee (in addition to

interest) for the Business Overdraft. The Temporary Overdraft was limited to 30 days and was

subject to a loan application fee and interest. Card account customers could apply to ANZ for an

increase of the credit limit on their account and for temporary credit limit increases in certain

circumstances.

PART 6: THE EXCEPTION FEE, THE EXCEPTION FEE EVENT AND IS IT A PENALTY?

A. INTRODUCTION

103 The 72 Exception Fees in issue are listed in Annexure 1. The Exception Fee Events were

not in dispute. They are set out in the column entitled “Transaction(s)/Event(s)” in Annexure 1.

104 Was each Exception Fee a penalty at law and further or alternatively, a penalty in equity?

It is necessary to divide the Exception Fee Provisions into two time periods – pre-December 2009

and post December 2009.

105 For the pre-December 2009 period, the Applicants alleged that ANZ’s entitlement to

impose each Exception Fee involved, or had as an essential pre-requisite, a breach of the relevant

Exception Fee Provision. Put another way, the Applicants contended that each Exception Fee was

payable upon breach of contract. ANZ’s position was that none of the Exception Fees was

payable on breach of contract. In particular, ANZ contended that none of the Exception Fees was

payable upon any element of the contract which viewed, as a matter of substance, involved breach

and therefore a critical initial integer for the claim at law was missing.

However, ANZ maintained only “formally” a submission that a Late Payment Fee was not

payable on breach of contract.

106 For the period post December 2009, the position was different. The Applicants’

contention was that the only Exception Fees payable upon breach were the Late Payment Fees.

Again, ANZ maintained its “formal” submission that a Late Payment Fee was not payable on

breach of contract. Of course, if the Court determined that any Exception Fee was payable on

breach of contract, ANZ contended that the second and vital element of Dunlop was absent;

the Exception Fees were not extravagant and unconscionable compared with the maximum

conceivable loss that might flow from the breach assessed at the time of entry of the contract.

As noted earlier, consideration of that vital element is addressed later in these reasons.

38

107 The Exception Fees fall into two broad groups – Late payment fees and then honour,

overlimit, dishonour and non-payment fees. Late Payment Fees will be considered first.

As noted, it may be of assistance to consider each by reference to the steps listed in [15] above.

B. PRE-DECEMBER 2009 – LATE PAYMENT FEES

(1) Exception Fee 4

108 It is appropriate to consider the first Late Payment Fee charged, Exception Fee 4. It was

common ground that the contractual terms for the other Late Payment Fees were not materially or

substantively different.

(a) Terms and Inherent Circumstances of the Contract, judged at the time of the making of the Contract – step 1

109 The contractual documents are not in dispute: see the column entitled “Contracts” in

Annexure 1 and [53] above. The Exception Fee Provisions are not in dispute: see the column

entitled “Extract of Specific Exception Fee Provision” in Annexure 1 and [54]-[57] above.

The Letter of Offer provided that “Each month you are required to pay [the amount] by the Due

Date shown on [the] statement of account”: see [54] above. The September 2006 Conditions of

Use stated that “[t]he account holder must make the ‘Minimum Monthly Payment’ shown on each

statement of account by the ‘DUE DATE’ shown on that statement of account”: see [55] above.

Next, the Letter of Offer went on to say “A fee of $35 will be charged to your credit card account

if [the amount] shown on the statement of account is not paid within 28 days of the end of the

“Statement Period” shown on that statement”: see [56] above. This was repeated in the August

2006 Fees and Charges Booklet: see [57] above.

110 The other inherent circumstances of the contract included the matters identified as relevant

in Part 6, Section B(1)(d) above.

(b) Exception Fee Events – step 2

111 These were also not in dispute: see the column entitled “Transaction(s)/Event(s)” in

Annexure 1. In the case of Exception Fee 4, the account statement dated 6 August 2006 had a

closing balance of $8,201.75 (Dr), and required a ‘Monthly Payment’ of $163 by the ‘Due Date’

of 31 August 2006. No such payment was made. As a result, Exception Fee 4 was charged on

4 September 2006.

112 On 15 September 2006, a member of ANZ’s Collections Team made an outbound call to

Mr Paciocco, during which Mr Paciocco promised to pay $163 on 15 September 2006 and $165

39

on 29 September 2006. The operator told Mr Paciocco that his account might be closed if

payment was not made, advised him of his next monthly payment and advised him to call back if

he had any problems. The next payment was $500 on 18 September 2006.

(c) Proper Construction of the relevant stipulation(s) – steps 3 and 4

113 In respect of each Late Payment Fee (Exception Fee 4 and Exception Fees 5-11 discussed

at [177]ff below), ANZ maintained its “formal” submission that each Late Payment Fee was not

payable on breach but was a fee charged by ANZ, as part of the operation of the account,

in respect of credit extended to the customer for a period of time beyond that previously agreed

with the customer and for the increased risk of default in repayment of the amounts borrowed:

see Andrews Trial at [244]-[249]. ANZ maintained that position before this Court and again

contended that each Late Payment Fee was a fee payable upon a further period of credit

necessarily extended by the bank to the customer because of the absence of timely payment.

ANZ stated that it “mark[ed] out the argument” but did not seek to develop it further noting that

ANZ “fully expect[ed]” this Court to arrive at the same conclusion on this point, as the Court did

in Andrews Trial when dealing with “parallel terms”.

114 It is both necessary and appropriate to identify and construe the relevant stipulations for

Exception Fee 4. The Letter of Offer of 16 June 2006 contained a stipulation that Mr Paciocco

was required, each month, to pay an amount by the “Due Date shown on [the] statement of

account”, and a similar stipulation was contained in the September 2006 Conditions of Use: see

[54]-[55] above. The “late payment fee” was payable if Mr Paciocco failed to comply with that

stipulation, namely “if [the amount] shown on the statement of account [was] not paid within

28 days of the end of the “Statement Period” shown on that statement”: see [56]-[57] above.

A plain reading of the contractual documents and the applicable Exception Fee Provisions leads to

the conclusion that the Late Payment Fee was payable upon breach by the customer of his

contractual obligation to make payment by a stated date: see [53]-[57] above. Contrary to the

submission of ANZ, the stipulation was not a fee payable upon a further period of credit

necessarily extended by the bank to the customer because of the absence of timely payment.

The credit had already been extended. It was the repayment of the credit, or at least part of the

credit, already extended that ANZ was seeking. Put another way, no further credit was extended.

115 Even if, contrary to the view just expressed, the Late Payment Fee was not payable upon

breach by the customer of his contractual obligation to make payment by a stated date (a view I do

not hold), then as a matter of substance, the stipulation in the Letter of Offer and the August 2006

40

Fees and Charges Booklet (see [56]-[57] above) (namely, that a fee of $35 would be charged

“if [the amount] shown on the statement of account [was] not paid within 28 days of the end of the

“Statement Period” shown on that statement”) was collateral to the primary stipulation in favour

of ANZ that required Mr Paciocco to make a minimum monthly payment by a due date: see [54]-

[55] above.

116 At law and in equity, the collateral stipulation was, as a matter of substance, to be viewed

as security for, or in terrrorem of, the satisfaction of the primary stipulation. That conclusion

flows from the express language of the provision (see [56]-[57] above), the subject matter of the

stipulation (stipulation arose only in not paying a sum of money) (see [18(4)(b)] above) and the

fact that the stipulation was not a fee payable upon a further period of credit necessarily extended

by the bank to the customer because of the absence of timely payment. The credit had already

been extended. ANZ was seeking repayment of the credit, or at least part of the credit, it had

already extended.

(d) Extravagant and Unconscionable – step 5

(i) Relevant facts and matters

117 This section addresses the further, and essential, element for there to be a penalty at law

and in equity – whether the stipulated sum is extravagant and unconscionable: see [14] above.

The applicable principles have been addressed earlier: see Part 4, Sections E and F above.

The Applicants submitted that the Exception Fees were extravagant and unconscionable.

ANZ rejected that contention.

118 The Applicants submitted that in determining whether the Late Payment Fee was

extravagant and unconscionable specific facts and matters were required to be considered.

The specific facts and matters may usefully be divided into three general categories; aspects of the

specific Exception Fee Provisions, the “inherent circumstances” and finally, a category that might

be labelled “ANZ’s state of mind”. Each category will be considered.

Aspects of the Late Payment Fee Provision

119 The first category – aspects of the specific Exception Fee Provision – is important in the

context of a Late Payment Fee. The same fee was payable regardless of whether the customer

was one day or one week late (or longer), and regardless of whether the amount overdue was

$0.01 (trifling), $100, $1,000 or even some larger amount: see [56]-[57] above. That fact alone

engaged the third rule of construction in Dunlop that there is a presumption (but no more) that the

41

stipulation is a penalty. Why? Because there was “a single lump sum … made payable by way of

compensation, on the occurrence of one or more or all of several events, some of which may

occasion serious and others but trifling damage”: see [18(4)(c)] above. As a result, there

necessarily was a degree of disproportion between the stipulated sum and the loss likely to have

been suffered by ANZ: cf AMEV at 193 extracted at [43] above.

120 That degree of disproportion cannot be considered in isolation. Other contractual terms

must be considered. In particular, it must be recalled that, in addition to the late payment fee, the

same contractual documents entitled ANZ, amongst other things, to charge (which it did) annual

interest of 12.24% on the specific outstanding amount.

121 That leads to the second rule of construction referred to by Lord Dunedin in Dunlop and

described by him as conclusive: see [18(4)(b)] above. The first part of that rule of construction

was applicable to the Late Payment Exception Fees – the breach (or failure of the stipulation)

consisted only in not paying a sum of money. The question which then arose was whether the

second part of that rule was met – is the sum stipulated a sum greater than the sum which ought to

have been paid? The Applicants said it was, ANZ said it was not. Before turning to that aspect,

it is necessary to consider the other categories of facts and matters identified by the Applicants.

The “inherent circumstances”

122 The second category – the “inherent circumstances” – have been considered at [92]-[102]

above. They necessarily inform the nature of, and circumstances of entry into, each contract.

They include the fact that the terms were not negotiated but were contained in documentation

provided unilaterally by ANZ; that at the time of contracting, other banks also charged a similar

late payment fee; that ANZ had the right unilaterally to vary the terms and conditions of each

contract (including the amount of the late payment fee, and the circumstances which defined the

entitlement to charge it) and did so relatively frequently. Of course, those matters must not

themselves be considered in isolation. The flip side of the nature of the contract was that the

account was terminable at will by Mr Paciocco. He was under no obligation to retain the account

or undertake transactions on the account.

123 However, taken as a whole, these circumstances provide further support for the conclusion

that, at least on its face, the late payment provision and fee is penal. ANZ was able to impose

these fees because of the inequality of bargaining power between the Bank and its customer

(here Mr Paciocco). The terms were contained in printed forms, which the customer had no

42

opportunity to negotiate. There was no agreement between “people contracting on equal terms”:

English Hop Growers v Dering [1928] 2 KB 174 at 181.

ANZ’s State of Mind

124 The third category of material – material relevant to ANZ’s state of mind – is in a different

category. In the present case, that material does not assist. That statement needs unpacking.

125 In determining whether a late payment fee is penal a distinction is to be drawn between a

stipulation which is “extravagant and unconscionable” in amount and one which is a “genuine

covenanted pre-estimate of damage”. Here, it was common ground that:

1. ANZ determined the quantum of the late payment fee in each contract.

2. ANZ “did not determine the quantum of each Exception Fee by reference to a sum that

would have been recoverable as unliquidated damages”.

3. There was no “genuine” determination by ANZ of the amounts to be charged by way of

the Exception Fee.

That necessarily left the question – was the fee “extravagant and unconscionable” in amount?

That question is addressed in Part B below. This third category of material does not assist in

answering that question.

126 There is another reason, not unconnected to the first, as to why this material is not

relevant. The phrase “genuine covenanted pre-estimate of damage” does not invite an inquiry into

the parties’ states of mind at the time of the contract. The inquiry is objective. It necessitates an

objective assessment of the possible loss that might be incurred, not the subjective views or

calculations of the parties prior to entering into the contract: see [41] above. The material was

not directed to that question.

127 That leads to considering the nature, and substance, of the material itself upon which the

Applicants sought to rely. In large part, the Applicants relied upon internal ANZ documentation

which covered a six year period and included discussion papers, briefing papers, reviews, minutes

of meetings, presentations and emails. A summary of that material is set out in Annexure 4.

(The passages relied upon by the Applicants are not in italics.) The Applicants submitted that the

following contentions (not necessarily limited to late payment fees) were able to be drawn from

that material:

43

1. ANZ frequently turned its mind to the conditions which would give rise to exception fees

becoming payable and what the quantum of each fee ought to be.

2. ANZ operated in a framework where it regarded exception fees as a part of its revenue

which contributed significantly to profit (and, therefore, not merely covering costs arising

from the Exception Fee Events) – indeed (critically) it well knew that the level of

Exception Fees was well above “cost recovery”.

3. ANZ regarded exception fees as arising when accounts were otherwise not “in order” or

being properly managed, or as capable of effecting “behavioural control” over how

customers dealt with accounts.

4. ANZ wanted to encourage customers to “avoid” exception fees (because, it should be

inferred from the evidence, it did not want customers’ accounts to be “out of order”).

5. ANZ was aware that if customers were presented with a reminder of the exception fee

before finalising a transaction, a significant percentage of them would not proceed with the

transaction (and would not overdraw their accounts, but rather maintain them in an orderly

state).

6. In terms of the level at which ANZ set exception fees, ANZ was conscious that the fees

were not set at an amount “limited to cost recovery only” and that ANZ set the level of

fees by reference “to market”. That is, the exception fees were set by reference to what

other banks were charging, and by extension, the maximum ANZ thought it could get

away with charging, and bore no relation whatsoever to the costs to ANZ of the relevant

events giving rise to the exception fees. (The Applicants submitted that this arbitrary

process of setting the amount showed, without more, that the amount was “extravagant and

unconscionable”.)

7. ANZ, on the other hand, contended that the material evidenced the response by ANZ staff

to the changing competitive and regulatory environment affecting exception fees in the

period from 2006 to 2009 and that the changes ultimately adopted reflected the nature of

the fees and the events that gave rise to those fees. The passages relied upon by ANZ are

italicised in Annexure 4.

128 A difficulty with the material was that both the Applicants and ANZ simply selected

(or, more bluntly, cherry picked) sentences, or even parts of sentences, in aid of their general

thesis. That was of limited use. It was of limited use because there were other problems with the

documentation. It was incomplete. A number of the documents were drafts with significant

44

sections blank. Other material rose no higher than proposals which were neither implemented nor

accepted by ANZ.

129 That documentation does not assist in the resolution of the question to be answered in this

case. Having determined that the Exception Fee Provisions relating to Late Payment Fees were

prima facie a penalty at law and in equity and given that ANZ admitted that the Late Payment Fee

was not a genuine pre-estimate of damage, the question left to be determined is to what extent

(if any) did the amount stipulated to be paid exceed the quantum of the relevant loss or damage

which can be proved to have been sustained by the breach, or the failure of the primary

stipulation, upon which the stipulation was conditioned: see [48] above. Again, none of those

matters identified answered or assisted in answering that question.

130 For those reasons, this third category of material may be put to one side in the present case

because it does not assist in answering the question left to be determined – to what extent (if any)

did the amount stipulated to be paid exceed the quantum of the relevant loss or damage which can

be proved to have been sustained by the breach, or the failure of the primary stipulation,

upon which the stipulation was conditioned?

(ii) Quantitative assessment

Introduction

131 The applicable principles have been addressed earlier: see Part 4, Sections E and F above.

132 The parties adopted fundamentally different approaches. They were like ships passing in

the night. ANZ engaged Mr Inglis, a chartered accountant. Until 31 May 2012, Mr Inglis had

been a partner in the Forensic department of the United Kingdom firm of Deloitte LLP. He is

now a forensic accounting consultant. Mr Inglis had in fact been retained by ANZ during, and

for, the Andrews Trial and Andrews High Court litigation.

133 The questions he was instructed to consider by ANZ are important, namely:

1. the costs that may have been incurred by ANZ in connection with the occurrence of

Exception Fee Events; and

2. the maximum amount of costs that ANZ could conceivably have incurred as a result of an

Exception Fee Event.

134 Mr Inglis prepared four initial reports: Late Payment Event Report dated 16 May 2013

(Inglis Late Payment Event Report), Supplemental Late Payment Event Report dated 5 July

45

2013 (Inglis Supplemental Late Payment Event Report), Overlimit Event Report dated 31 July

2013 (Inglis Overlimit Event Report) and Demand Deposit Account Exception Event Report

dated 3 September 2013 (Inglis DDA Report) (collectively, the Inglis Reports).

135 The Applicants responded by engaging Mr Regan, a certified public accountant in

California and the Chairman of Hemming Morse LLP, an accounting firm. Mr Regan is also a

forensic consultant. The task he was given was fundamentally different. He was instructed to

identify the amounts needed to restore ANZ to the position it would have been in had the events

giving rise to the Exception Fee not occurred. Mr Regan prepared three reports: Report dated

3 October 2013 in response to the Inglis Overlimit Event Report, Report dated 10 October 2013 in

response to the Inglis Late Payment Event Report and Supplemental Late Payment Event Report

and Report dated 22 October 2013 in response to the Inglis DDA Report (collectively, the Regan

Reports).

136 In response, Mr Inglis prepared a reply to the Regan Reports dated 12 November 2013

(Inglis Reply Report). Finally, at the direction of the Court, Mr Inglis and Mr Regan met

privately and prepared a joint report which identified their areas of agreement, their areas of

disagreement and, where they disagreed, the reason or reasons for that disagreement.

137 Unsurprisingly, the amounts arrived at by each expert were vastly different. This was due,

in part, to their different instructions and different approaches. However, there were other specific

issues with the Inglis Reports.

Issues with the Inglis Reports

138 As noted, the Inglis Reports were directed to seeking to establish that ANZ’s greatest

conceivable loss exceeded the amount of each Exception Fee: see [133] above. This approach

had a number of problems. Instead of calculating ANZ’s loss or damage from each separate

Exception Fee Event, Mr Inglis’ calculated ANZ’s “costs” for the 2009 Financial Year, and then

extrapolated that to other years. The reason why he adopted that approach was because this was

the only material ANZ provided to Mr Inglis. Mr Regan’s position was that the 2009 Financial

Year was an inappropriate period on which to base the calculations, or to use as a proxy for other

years, because of the peculiarities of that year, impacted as it was by the Global Financial Crisis.

I agree.

139 Next, Mr Inglis’ enquiry was done ex post facto. As the Applicants submitted this: (a) did

not inform any genuine pre-estimate of damage (a fact already admitted against ANZ); and (b) did

46

not rebut the presumption that the Late Payment Fee was a penalty. If the Late Payment Fee was

prima facie a penalty, the ensuing enquiry was to what extent (if any) did the amount stipulated to

be paid exceed the quantum of the relevant loss or damage which can be proved to have been

sustained by the breach, or the failure of the primary stipulation, upon which the stipulation was

conditioned: see [48] and [126]-[130] above.

140 In fact, Mr Inglis did not seek to calculate loss or damage. Instead, he was asked to

(and did) engage in a broad ranging exercise of identifying “costs” in a theoretical accounting

sense that might be affected by an Exception Fee Event. That exercise does not assist in

answering the question just identified – to what extent (if any) did the amount stipulated to be paid

exceed the quantum of the relevant loss or damage which can be proved to have been sustained by

the breach, or the failure of the primary stipulation, upon which the stipulation was conditioned.

Whether that exercise might assist as a step in answering that question is an issue which will be

addressed later.

Categories of Costs

141 One further aspect of the broad ranging approach of cost identification adopted by

Mr Inglis requires separate consideration. In calculating “the maximum amount of costs that ANZ

could conceivably have incurred as a result of an event giving rise to an entitlement to charge an

exception fee”, Mr Inglis identified, and quantified, three main types of cost that ANZ incurred in

relation to Exception Fee Events. These three cost categories were important because, if relevant,

their size was in most instances significantly greater than the Exception Fee in issue. The general

cost categories were:

1. an increase in loss provisions;

2. an increase in the costs of regulatory capital (resulting from an increase in regulatory

capital); and

3. the occurrence of operational costs.

142 Operational costs were comprised of a number of sub-categories. Mr Inglis accepted that a

number of sub-categories were not relevant to Late Payment Fees. The irrelevant sub-categories

were transaction costs (relevant to honour, dishonour and overlimit fees) and decision costs

(relevant to honour, dishonour, overlimit and non-payment fees). According to Mr Inglis,

the remaining sub-categories of operational costs – collections costs, enquiry costs and product

costs – were relevant to Late Payment Fees.

47

143 Mr Regan did not accept that these categories of costs should be included. It is necessary

to consider each cost category.

Increase in loss provisions

144 In accordance with International and Australian Generally Accepted Accounting Principles

(GAAP), ANZ uses provisioning to estimate the impairment of its financial assets (including,

for example, the partial or complete loss of balances advanced to its customers by way of loans,

overdrafts or credit cards). ANZ is required to hold such provisions under Australian Accounting

Standards Board (AASB) 139. AASB 139 is concerned with the measurement of a present or

current loss; that is, a cost of ANZ to be recognised now and not an estimate of any future losses

that may be expected or anticipated, in order to ensure that the financial statements present a fair

value of what is likely to be collected from ANZ’s receivables.

145 When accounting for a provision, two changes are reflected in the accounts. First, the

asset ANZ is currently recognising on its balance sheet (the amount the customer owes) is reduced

to the level that ANZ expects to recover, that is, to its fair value. Second, a loss is recorded in

ANZ’s profit and loss account as an expense or cost, representing the reduction (impairment) in

the asset value. It is concerned with measurement of a present or current cost, not a future cost.

146 ANZ uses a collective approach to provisions in respect of the Basel Retail Asset Class,

being exposures less than $500,000. This class includes credit cards, retail deposits, mortgages,

personal loans and private banking accounts and various business accounts. The movement in the

collective provision is recorded in the profit and loss account. If an individual customer account

is written off, ANZ records the cost of write off at that time on that account and therefore no

longer uses the collective provision to estimate the loss. The cost to ANZ of the impaired or lost

asset is transferred from the collective provision to an individual provision in the profit and loss

account. The overall cost to ANZ in any given year (the Impaired Asset Expense) is therefore the

sum of the write off expense and the change in the individual provision and collective provisions

between the beginning and end of the year.

147 ANZ’s calculation of the collective provision is based upon, in part, account behaviour.

That is not surprising. Account behaviour is an indicator of the risk associated with repayment of

borrowings and therefore of the impairment of the loan asset. Account behaviour by which

customers initiate transactions that would overdraw the account beyond approved credit limits,

and late payment in the case of card accounts, increase the calculation of risk associated with the

48

borrowings on the account and increase ANZ’s collective provision. As Mr Regan described it,

a provision is much like a fuel gauge. If the fuel gauge indicates that you are low, you are going

to need to refuel if you are going to finish your journey. However, the fuel gauge is not

responsible for the need to go to the petrol station. The provision, like the fuel gauge,

merely indicates that there may be in the future the inability to collect a specific balance.

148 Mr Inglis gave evidence that a cost to ANZ occurs when the provision is made. At that

time, the provision is recorded as an expense or cost in the profit and loss account. The provision

is not recording a future loss. It is a present loss, being the reduction in value of a loan to a

customer by reason of the customer’s behaviours (here, Exception Fee Event behaviour).

In Mr Inglis’ view, the reduction in value of a loan asset was an accepted category of loss.

Consistent with that view, Mr Inglis performed a number of calculations demonstrating the effect

of overdraw transactions and late payment on ANZ’s provisions. According to these calculations,

the increase in the loss provision resulting from an Exception Fee Event would often exceed the

amount of the Exception Fee.

149 On the other hand, Mr Regan disregarded these provision costs. ANZ submitted that this

was as a result of the instructions he was given, not because he disagreed with Mr lnglis as a

matter of accounting theory or practice. ANZ submitted that given the backward looking nature

of the question he was asked, Mr Regan took as his starting point the present fact that the

Applicants had not, to date, defaulted in the repayment of their borrowings and they had not

caused ANZ to write off amounts owed by them. However, that is not a complete answer.

As Mr Regan accepted in cross-examination, at the time of making the provision ANZ would not

know whether a customer (including the Applicants) would or would not default in repayment; the

provision is based on the information available to ANZ at the time the provision is made.

Indeed, looking forward from today, ANZ does not know whether or not the Applicants will

default in repayment of their borrowings and therefore maintains a loss provision reflecting the

risk that they will default.

150 Are loss provisions then a cost to be considered in assessing the extravagance or otherwise

of an Exception Fee? While a loss provision may well be a “cost” in an accounting sense, it does

not represent a loss or damage incurred as a result of an Exception Fee Event. A provision is

merely an accounting entry, which is made to reflect the fact that it is estimated that some

proportion of a group of outstanding loans will be unable to be collected. As Mr Regan said in

evidence, a bank in the credit card business knows when advancing funds on behalf of cardholders

49

that not all of those cardholders are going to be paying the balances. A provision is no more than

a probability that not all of the recorded amount will be received by the institution. In the case of

Mr Paciocco, he was not among the population of cardholders that were not paying the cardholder

balances to ANZ. ANZ was not writing off the balances due from him. He may have been paying

late, but he was paying. There was and remains a distinction between the statistical estimate of a

future loss (general in nature) and what in fact occurred. Moreover, if assets are ultimately

received at their full value, a provision will be written down to zero.

151 Provision costs were not relevant to the cost of the Exception Fee Event.

Increase in the cost of regulatory capital

152 ANZ’s expected losses in any financial year are reflected in its accounting provisions:

see [144]-[149] above. As an authorised deposit-taking institution (ADI), ANZ is required to hold

Regulatory Capital to cover unexpected losses: for example, see Prudential Standard APS 110

which requires an ADI to maintain adequate capital to act as a buffer against the risk associated

with its activities.

153 An ADI’s capital adequacy is measured by the ratio of the ADI’s capital base to its risk

weighted assets (RWA) (the “capital ratio”). The RWA is calculated as the value of ANZ’s assets

weighted for credit risk by means of a risk-weight function (K). The risk-weight function

increases as the risk of default increases. If the risk increases, the RWA increases and the capital

ratio declines, requiring the ADI to hold additional Regulatory Capital. Account behaviour such

as overdraw transactions and late payment adversely affect the risk-weight function in a similar

manner to the collective provision, thereby increasing the Regulatory Capital required to be held.

154 Regulatory Capital has a cost to ANZ. It is the loss of the additional return, over and

above the return ANZ is actually able to earn on that Regulatory Capital, ANZ is required to earn

from its customers to provide an adequate return to the providers of its capital. Mr Inglis

calculated the cost of the different components of ANZ’s regulatory capital as 10% for Core Tier

1 Capital (shareholder funds), 0.8% for Residual Tier 1 Capital (typically hybrid instruments such

as convertible notes and preference shares) and 0.3% for Tier 2 Capital (subordinated debt

instruments).

155 Mr Inglis calculated the effect of overdraw transactions and late payment on the amount of

Regulatory Capital required to be held by ANZ and the cost of that additional Regulatory Capital.

In many instances, the cost of additional Regulatory Capital alone would exceed the applicable

50

Exception Fee. Mr Regan disregarded regulatory capital cost for the same reason he disregarded

provision costs. He considered that the regulatory capital cost was a follow on cost from the

provision costs. As such, the costs of regulatory capital were not relevant to the question that he

was asked. ANZ submitted that because the question he was asked was not relevant to the issue

of “extravagant quantum” to be determined by the Court, his view on this topic should be

disregarded. I reject the contention that the alleged increase in cost of regulatory capital is to be

taken into account in calculating loss or damage. Put another way, provisions and regulatory

capital are part of the costs of running a bank in Australia. No increase in them can be directly or

indirectly related to any of the late payments by Mr Paciocco. As the Applicants submitted,

there are many cases each year by banks against customers and guarantors where the principal

debtor has defaulted. In those cases, the banks seek damages limited to the sums outstanding,

enforcement costs and interests. No one has suggested that a bank would be entitled to recover an

increase in provisioning or the cost of its regulatory capital.

Operational Costs

156 ANZ incurs operational costs associated with late payment of card accounts (as well as

overdraw transactions on deposit and card accounts). Presently, it is necessary to consider

operational costs associated with late payments.

157 Late payment of card accounts may trigger collections activity by ANZ.

Collections activity is the action taken by ANZ to recover amounts owed by customers. In the

case of Exception Fee 4, there were steps taken by the collections section of ANZ: see [112]

above. Mr Inglis calculated the cost to ANZ of collections activity (“collections costs”) in various

scenarios. In many scenarios, the collections costs associated with a late payment of a card

account exceeded the amount of the Exception Fee.

158 Next, ANZ incurs operational costs in responding to enquiries from customers who have

incurred Exception Fees (“enquiry costs”). Customers typically query the reason for the

imposition of the fee and whether the fee can be reversed. ANZ also incurs significant overhead

costs in respect of its deposit and card account products (“product costs”). It is ANZ’s practice to

allocate the majority of such product costs to specific product areas. Mr Inglis allocated those

product costs to the transactions associated with Exception Fees.

159 Mr Regan accepted that ANZ incurs these costs. However, the question he was asked

required him to assess the actual variable or incremental costs incurred by ANZ as a result of the

51

Exception Fee Events. As such, some operational costs were excluded by Mr Regan because they

did not vary by reason of the Exception Fee Events relevant to the Applicants. For that reason,

ANZ submitted, Mr Regan’s evidence on ANZ’s operational costs should be disregarded by the

Court.

160 It is necessary to consider each category of operational costs. For the reasons that follow,

Mr Inglis’ approach is rejected.

161 First, collections costs. Mr Regan’s calculations are based on evidence available as to

actual call lengths in relation to the Applicants. Mr Regan used actual call lengths when known

and the average of the actual call lengths when not known. Mr Inglis criticised that approach,

but reluctantly accepted in cross-examination that rather than address an average of customers’

call times, data on Mr Paciocco’s average call time was a better indicator of his average call

length, a matter also accepted by Mr Rinaldi, the Retail Manager of the Customer Connect team in

the Operations group at ANZ, in cross-examination. I reject Mr Inglis’ criticism.

162 Next, the hourly rate for collections costs. Mr Inglis used a cost per minute based upon his

full absorption costing methodology to arrive at an hourly rate. Mr Regan on the other hand,

used an assumed average wage, adjusted for a variety of inputs. In the course of cross

examination, Mr Rinaldi revealed for the first time that since 2012 some of ANZ’s collections

calls have been made from Manila rather than Melbourne. Having become aware of this

information, Mr Regan compared average wages for call centre staff in the Philippines to that of

Melbourne. The wages in the Philippines were approximately 15% of that in Melbourne.

This reduction in costs reduced the incremental collections costs further and dramatically.

Mr Regan’s approach is a more appropriate methodology for calculating collections costs than

that adopted by Mr Inglis.

163 Second, enquiry costs. Mr Inglis himself acknowledged that these costs do not result from

Late Payment Exception Fee Events. They were therefore properly excluded by Mr Regan.

164 Third, product costs. Mr Regan’s calculations also properly excluded recovery of large

amounts of general “overhead” expenses that bore no relation to the Exception Fees or the

Exception Fee Events which gave rise to them. These “overhead” costs are not made greater

because of the occurrence of any particular Exception Fee Event, or indeed Exception Fee Events

generally. They are and are to be viewed as the costs of being a bank. To take just one example,

because Mr Inglis adopted a full absorption methodology, he allocated “inter group expenses” in

52

calculating the cost of each Exception Fee Event. One of the “inter group expenses” he allocated

was $195 million in the 2009 Financial Year for the costs to ANZ of its loyalty points program for

credit cards. That is a cost that is no doubt necessary to attract customers to enter into a card

account with ANZ. It exists to entice customers to contract with the bank. It does not exist as a

result of, or as a cost of, an Exception Fee Event.

Relevance of ANZ’s revenues

165 In his reports, Mr Regan observed that ANZ recovers its costs of its card and deposit

account business by earning a variety of revenues (including fees). Mr Regan noted in his report

that Mr Inglis’ analysis did not address the extent to which the costs which Mr lnglis assessed

“ha[d] already been recovered by the interest and other fees that ANZ charge[d] its cardholders”.

166 ANZ submitted that ANZ’s other revenues were irrelevant to the question it was required

to consider. In support of that contention, ANZ submitted that Mr Regan’s comment was based

on an assumption, namely that “the interest rate which a bank imposes on the cardholders’ unpaid

balance is designed to cover its cost of capital, its related operating costs and the risk that it will

not be repaid, and provide a profit to the bank”, for which there was no evidentiary foundation.

ANZ submitted that therefore there was no basis to conclude that it applied to the manner in

which ANZ set its interest rates, including on Card Account 9629, the low rate card account.

Secondly, ANZ submitted that the question of ANZ’s other revenues were irrelevant to the issue

to be determined by the Court because the other fee revenue earned by ANZ was revenue earned

whether or not a customer engaged in activities that give rise to the Exception Fees.

167 Mr Inglis did not take into account the increased revenue which accrued to ANZ as a result

of the Exception Fee Events (e.g. the substantial interest charged by ANZ on late and overdrawn

amounts, and the other fees (such as cash advance fees) which ANZ imposed on certain types of

transactions). His reason for not doing so was that it was not within the scope of his instructions

to do so (those instructions being to only calculate the ‘costs’). Mr Inglis did not suggest that such

benefits were irrelevant when one comes to assess loss and damage.

168 ANZ submissions, in part, are rejected. The general contention that ANZ derives revenue

whether or not a customer engages in activities that give rise to exception fees is of little

assistance in seeking to resolve the question to be determined by the Court.

However, in assessing whether an Exception Fee is extravagant and unconscionable, the fact that

ANZ derives other revenue (other than the Exception Fee) from the specific Exception Fee Event

53

is relevant. It simply cannot be ignored. When Mr Paciocco did not make the required monthly

payment on his Card Account 9522 by the due date of 31 August 2006, at least two sources of

revenue were earned by ANZ – interest at 12.24% on the amount outstanding and the Late

Payment Fee. How can you assess the proper character of the Exception Fee without considering

the other revenue earned by ANZ on the same Exception Fee Event? The answer is you cannot.

That is not the only other term of the contract between the Bank and Mr Paciocco that remains to

be considered. For example, under cl 30 of the September 2006 Conditions of Use (see [5(9)] of

Annexure 2), ANZ retained the right to cancel the card or refuse authorisation of further

transactions on that card at any time if, among other things, ANZ believed the use of the card or

account may cause loss to ANZ or Mr Paciocco when, for example, Mr Paciocco was in default

under the terms of the account. Those facts and matters are of relevance in determining, for

example, whether the stipulated sum (the late payment fee) is extravagant and unconscionable in

amount in comparison with the greatest loss that could conceivably be proved to have followed

from a failure to meet the primary stipulation.

Finch Report

169 Dr Finch was engaged by ANZ to report on whether the opinions expressed in the Regan

Reports were correct, with specific regard to methodology, provisions and regulatory capital,

and to comment on Mr Inglis’ approach to those matters. That engagement was inappropriate and

unnecessary. Mr Inglis was the appropriate person to reply to the matters raised by Regan.

Such matters were in fact addressed by Mr Inglis in the Joint Report. To the extent that Dr Finch

was to act as an “adjudicator” between the experts, it was inappropriate that he be appointed

unilaterally by ANZ. The Applicants are justified in their concern that Dr Finch’s engagement

was an attempt to bolster ANZ’s expert evidence by weight of numbers or attempt to ‘out

credential’ the Applicants.

(e) Loss and damage – step 6

170 The calculations of Mr Inglis and Mr Regan for each Exception Fee varied considerably.

A summary of their respective calculations for Late Payment Fees is attached as Annexure 3.

Mr Inglis’ calculations produced figures that suggested that the cost to ANZ is significantly

greater than the Exception Fee charged. In a competitive financial market, it is difficult to accept

that a prudent bank would allow Exception Fee Events to occur at all if the costs of each event far

outstripped the amount of the fee.

54

171 In the Inglis Reply Report, Mr Inglis purported to address ANZ’s costs in relation to the

specific Exception Fee Events charged to the Applicants including, relevantly here, Exception Fee

4. Mr Inglis assessed the cost at between $5 and $73. In doing so, Mr Inglis dealt with the

following cost categories: provisions, regulatory capital and operational costs. For the reasons

stated above, his analysis retains the earlier difficulties. He did not address the proper question:

see [138]-[140] above. He improperly included provision and regulatory capital costs, which, by

far, were the largest cost items: see [144]-[155] above. In fact, Mr Inglis accepted that in relation

to some Exception Fee Events (both generally and specifically in relation to the Applicants),

no provision or regulatory capital costs were in fact incurred. Mr Inglis’ third category of costs,

“operational costs”, included a number of sub-items. There were a number of significant

problems with both the inclusion of the item and, further, its quantification: see [156]-[164]

above.

172 Mr Regan assessed the damage at $2.60. However, in doing so he acknowledged that

insufficient information had been provided to him to enable him to calculate the precise damage to

ANZ attributable to each Late Payment Exception Fee Event so as to restore ANZ to the position

it would have been in if the event had not occurred.

173 The circumstances do not permit the loss to be assessed with certainty: see [46]-[47]

above. The calculation or estimation of loss is difficult. It is therefore necessary to estimate the

value of the loss. I accept that some guesswork and speculation is necessary and appropriate.

Having regard to the evidence before the Court, I am satisfied on the balance of probabilities that

ANZ suffered some loss or damage by reason of the Late Payment Exception Fee Event and that

the quantum of that loss or damage is no more than $3. On any view, it is considerably less than

$35. I assess the loss or damage at $3. The loss or damage of $3 is comprised of the operational

(collections) costs identified by Mr Regan rounded up to the nearest half dollar.

174 Three other matters should be noted. First, no question of the time value of money arises

because ANZ was entitled to, and did, charge interest on the amount not paid. Second, no form of

damage other than those I have already considered was identified by ANZ. Third, it is consistent

with characterising the stipulation as a penalty (in terrorem) to conclude that ANZ’s direct or

indirect costs of imposing, or recovering, the stipulation, are not recoverable.

(f) ANZ’s other submissions

175 ANZ submitted that it was apparent from the evidence adduced by Mr Inglis that the costs

that might be occasioned to ANZ by late payment of a card account would be very difficult to

55

calculate precisely. It abandoned its contention that it was impossible. In support of its

contention that calculation of costs would be very difficult to calculate precisely, ANZ submitted

that when it entered into a card account with a customer, it could not know in advance the

circumstances in which the customer might not pay on time the amounts due on the account.

In the case of Mr Paciocco, ANZ submitted that it could not know:

(a) the account balance at the time of the late payment (which would impact the level of ANZ’s provisions and regulatory capital);

(b) the (credit risk) score assigned to Mr Paciocco’s account at that time (which

would also impact the level of ANZ’s provisions and regulatory capital); and (c) whether and in what period Mr Paciocco would rectify the late payment (which

would affect both the level of ANZ’s provisions and regulatory capital and whether ANZ would need to take steps to secure repayment of the additional borrowings from Mr Paciocco which would occasion collection costs).

176 This contention is rejected for a number of reasons. First, it refers to and relies upon

categories of cost which are not relevant. Secondly, and no less importantly, it misstates the task

of the Court. The applicable principles are set out above: see Part 4, Sections E and F above.

The fact that the task is difficult (even very difficult) does not provide an answer (or even part of

an answer) to the fact that the Late Payment Exception Fee Provision and Late Payment Fee is a

penalty at law and in equity. The stipulated sum is not agreed compensation.

(2) Exception Fees 5-11

177 It is appropriate to address each of the steps earlier identified.



Annexure 1 and [53] and [58] above. The Exception Fee Provisions are not in dispute: see the

column entitled “Extract of Specific Exception Fee Provision” in Annexure 1 and [54]-[57] above.

The other inherent circumstances of the contract included the matters identified as relevant in

Part 6, Section B(1)(d) above.


179 These were also not in dispute. For each Late Payment Fee, they are summarised in the

column entitled Transaction(s)/Event(s) in Annexure 1. A review of that material indicates,

as was the fact, that relevant Exception Fee Events were different. For example, for Exception

56

Fees 5, 9 and 11, a person within or on behalf of ANZ contacted Mr Paciocco to discuss the

Exception Fee Event. On some occasions, an automated telephone call was made to Mr Paciocco

as a result of the Exception Fee Event: see, for example, Exception Fee 9. On other occasions,

the Exception Fee was charged and no further or additional step specific to Mr Paciocco was

taken by ANZ: see, for example, Exception Fees 6-8 and 10.


180 As noted at [113] above, for Exception Fees 5-11 ANZ maintained its “formal”

submission that each Late Payment Fee was not payable on breach but was a fee charged by ANZ,

as part of the operation of the account, in respect of credit extended to the customer for a period of

time beyond that previously agreed with the customer and for the increased risk of default in

repayment of the amounts borrowed: see Andrews Trial at [244]-[249]. ANZ maintained that

position before this Court and again contended that each Late Payment Fee was a fee payable

upon a further period of credit necessarily extended by ANZ to the customer because of the

absence of timely payment.

181 It was common ground that there was no relevant distinction between these Exception

Fees and Exception Fee 4. A plain reading of the contractual documents and the applicable

Exception Fee Provisions leads to the conclusion that the Late Payment Fee was payable upon

breach by the customer of his contractual obligation to make payment by a stated date: see [114]

above. Contrary to the submission of ANZ, the stipulation was not a fee payable upon a further

period of credit necessarily extended by the bank to the customer because of the absence of timely

payment. The credit had already been extended. It was the repayment of the credit, or at least

part of the credit, already extended that ANZ was seeking. No further credit was extended.

182 Again, even if, contrary to the view just expressed, the Late Payment Fee was not payable

upon breach by the customer of his contractual obligation to make payment by a stated date

(a view I do not hold), then as a matter of substance, the stipulation in the letter of offer

(namely, that “a fee of $35 will be charged to your credit card account if [the amount] shown on

the statement of account is not paid within 28 days of the “Statement Period” shown on that

statement”) was collateral to the primary stipulation in favour of ANZ that required Mr Paciocco

to make a minimum monthly payment by a due date: see [115] above. For the reasons stated

above (see [116]), at law and in equity, the collateral stipulation was, as a matter of substance, to

be viewed as security for, or in terrorem of, the satisfaction of the primary stipulation.

57

(d) Extravagant and Unconscionable – step 5

183 For the reasons set out at [117]-[169] above, each of Exception Fees 5-11 is extravagant

and unconscionable.


184 Having determined that the Late Payment Exception Fee Provision and Exception Fee was

prima facie a penalty at law and in equity and given that ANZ admitted that the Exception Fee

was not a genuine pre-estimate of damage, the question left to be determined is to what extent

(if any) did the amount stipulated to be paid exceed the quantum of the relevant loss or damage

which can be proved to have been sustained by the breach, or the failure of the primary

stipulation, upon which the stipulation was conditioned: see [48] and [126]-[130] above.

185 As noted earlier (see [179] above), a review of the column entitled Transaction(s)/Event(s)

in Annexure 1 indicates, as was the fact, that the Exception Fee Events giving rise to Exception

Fees 5-11 were different. For example, for Exception Fees 5, 9 and 11, a person within or on

behalf of ANZ contacted Mr Paciocco to discuss the event. On some occasions, an automated

telephone call was made to Mr Paciocco as a result of the event: see, for example, Exception Fee

9. On other occasions, the Exception Fee was charged and no further or additional step specific to

Mr Paciocco was taken by ANZ: see, for example, Exception Fees 6-8 and 10.

186 As with Exception Fee 4, the circumstances do not permit the loss to be assessed with

certainty: see [173] above. The calculation or estimation of loss is difficult. It is therefore

necessary to estimate the value of the loss. Again, I accept that some guesswork and speculation

is necessary and appropriate. Having regard to the evidence before the Court, I am satisfied on

the balance of probabilities that ANZ suffered some loss or damage by reason of the Late

Payment Exception Fee Event and that the quantum of that loss or damage is no more than the

operational (collections) costs identified by Mr Regan rounded up to the nearest half dollar.

Of course, in relation to Exception Fees 6 to 8 and 10, Mr Regan identified no operational

(collections) costs. In relation to those Exception Fees, the loss or damage is assessed at $0.50.

187 The three other matters earlier identified (see [174]ff above) apply equally to those Late

Payment Fees.

C. PRE-DECEMBER 2009 –- HONOUR, OVERLIMIT AND NON-PAYMENT FEES

(1) Saving Honour Fee (Exception Fee 1)

188 It is appropriate to consider a Saving Honour Fee (Exception Fee 1).

58





The other relevant circumstances include the matters listed in Part 6, Section B(1)(d) above.


190 These were not in dispute: see the column entitled Transaction(s)/Event(s) in Annexure 1.

At the commencement of 12 September 2008, no overdraft facility had been agreed for Saving

Account 156. However, there was an Online Excess Shadow Limit applicable to an ATM

withdrawal on that account. The Online Excess Shadow Limit for Saving Account 156 was $200.

The Online Excess Shadow Limit was explained at [101] above.

191 On 15 September 2008, the opening balance of Saving Account 156 was $46.99.

Five transactions were posted to the account on 15 September 2008. An ATM withdrawal valued

at AUD79.43 (FJD100.00) initiated by Mr Paciocco at 7:24pm on 12 September 2008 at the

Sheraton Royal in Nadi, Fiji was automatically authorised by ANZ’s Core Transaction

Management System (CTM) because its processing would not bring the account beyond its

shadow limit. The transaction was posted, leading to a debit balance of $32.44. A further ATM

withdrawal valued at AUD156.52 (FJD200.00) initiated by Mr Paciocco at 4:24pm on

13 September, also in Fiji, was also automatically authorised by CTM because its processing

would not bring the account beyond its shadow limit. That transaction was posted, leading to a

debit balance of $188.96. Then, a ‘Cirrus ATM Transaction Fee’ of $10 was posted to the

account, leading to a debit balance of $198.96 and, finally, an honour fee of $35, being Exception

Fee 1, was charged, leading to a final debit balance of $233.96. In addition, ANZ sent a standard

form letter to Mr Paciocco advising him that he had incurred an honour fee, and outlining ways in

which he might avoid incurring fees in the future. On 18 September 2008, $3,000 was deposited

into the account, resulting in a credit balance of $2,766.04.

192 ANZ’s response to an overdraw transaction on this account was governed by the Auto

Honour process. The Auto Honour process applied to online transactions including ATM

transactions. The Auto Honour process determined whether a transaction on a saving account

would be honoured, declined or referred to the not for sufficient funds (NSF) team for manual

59

review. The NSF team was not engaged in relation to Saving Account 156. It will be necessary

to consider the NSF system in relation to Business Account 58555.

193 The Auto Honour process on saving accounts was undertaken by ANZ’s CTM system.

In general terms, a transaction will be honoured by the Auto Honour process where the transaction

would not cause the account to overdraw beyond the shadow limit. The evidence disclosed that a

vast majority of saving accounts have their shadow limit calculated by ANZ’s electronic system

known as TRIAD. TRIAD calculated a deposit account’s shadow limit based upon a range of

factors including the customer’s historical account behaviour. The shadow limit was recalculated

at least monthly. A small number of saving accounts have their shadow limit set by ANZ’s

Customer Account Processing system. These accounts have a shadow limit of zero or a small

fixed shadow limit determined by the type of account as opposed to a customer specific shadow

limit determined in the manner just identified.

194 When the Auto Honour process honoured a transaction, ANZ did not assess the nature of

the transaction in determining whether to authorise the transaction. ANZ’s assessment was based

solely on the amount of the transaction in relation to the balance of the account and the pre-

determined shadow limit. Saving Account 156 had different shadow limits over time.

195 When an overdraw transaction was auto-honoured, an honour fee could be charged. If an

online transaction would overdraw the account beyond its shadow limit, the transaction would be

declined and no exception fee would be charged.


196 Mr Paciocco submitted that Exception Fee 1 was payable upon breach of contract.

The submission was as follows:

Clause 2.12 of the August 2008 Terms and Conditions contained a requirement that it was “a condition of all ANZ accounts that you must not overdraw your account without prior arrangements being made and agreed with ANZ”. The Macquarie Dictionary (5th ed) defines ‘overdraw’ as follows:

1. to draw upon (an account, allowance, etc.) in excess of the balance standing to one’s credit or at one’s disposal. 2. to draw too far; strain, as a bow, by drawing. 3. to exaggerate in drawing, depicting, or describing. 4. to overdraw an account or the like.

That definition emphasises that the overdrawing refers to an act by the customer in respect of the account. It is not the Bank’s response that is relevant; the initiation of the event of overdrawing is the act of the customer, and that act is contrary to the language of obligation included in cl 2.12 of the August 2008 Terms and Conditions. The overdrawing by the customer was a breach of the customer’s

60

contractual obligations. (Emphasis in original.)

197 I reject that contention. First, it does not refer to all of the applicable contractual terms.

Significantly, it omits any reference to the opening words of cl 2.12 (“ANZ does not agree to

provide any credit in respect of your account without prior written agreement”: see [65] above) or

to the fact that the balance of the clause expressly provides for that which the Applicants contend

is prohibited (the overdrawing of the account). The last activity is at ANZ’s discretion and if

exercised in favour of the account holder, is subject to interest and an honour fee.

198 As was explained in Andrews Trial:

1. A withdrawal or payment instruction given by a customer that would have the effect of

overdrawing the customer’s account or exceeding the account credit limit is to be

construed as a request from the customer for an advance or loan from ANZ. ANZ may

approve or decline the request in its discretion: Andrews Trial at [82], [177], [279], [306]

and [322].

2. The overdrawing of a customer account (whether a deposit account or a credit card

account) was not a unilateral action by the customer, but was an action that required the

consensual conduct of ANZ and the customer: for example, see [191] above. For the

transaction to proceed, ANZ had to agree to and approve or authorise the transaction:

Andrews Trial at [182], [280], [291], [307] and [323].

3. Overdrawing the account could not constitute a breach by the customer of a contractual

obligation. Such transactions fell within the express provisions of the applicable

contractual terms which stated that ANZ may allow or authorise such transactions, or were

outside the contractual terms because ANZ approved the transaction: Andrews Trial at

[182], [280], [291], [307] and [323].

4. It was not a breach of contract for ANZ’s customers to give a withdrawal or payment

instruction to ANZ that would have the effect, if honoured, of overdrawing the customer’s

account or exceeding the account credit limit. The relevant provisions of the customer

contracts did not impose a contractual obligation not to give such an instruction. In fact,

the relevant provisions stated expressly that ANZ may allow or authorise such a

transaction: Andrews Trial at [185], [186], [208], [214], [328] and [331].

61

5. Honour and overlimit fees (as will become relevant later) were charged by ANZ as a

consequence of a customer issuing a withdrawal or payment instruction to ANZ that would

have the effect, if honoured, of overdrawing the customer’s account or exceeding the

account credit limit and ANZ approving or authorising the instruction. The fees were

charged in respect of ANZ’s decision concerning the request for additional borrowing:

Andrews Trial at [182], [183], [187], [279], [280], [291], [306], [307] and [328].

The honour fee in respect of consumer accounts was charged once per day, regardless of

how many transactions that occurred on that day overdrew the account (Andrews Trial at

[187]) and the overlimit fee in respect of card accounts was charged once per month, at the

end of a statement period, if the balance of the account exceeded the credit limit during the

statement period: Andrews Trial at [277]. Honour and overlimit fees were not charged by

ANZ upon a breach of contract by the customer.

This analysis is equally applicable to the Exception Fee Provisions in this case: see [65]-[66]

above in relation to Exception Fee 1, and in respect of other Honour and Overlimit Fees to be

discussed later in these reasons, see [60]-[62] (Overlimit Fee), [77]-[79] (Overlimit Fee), [84]-[88]

(Business Honour Fee) and [248] (Overlimit Fee); see also Office of Fair Trading v Abbey

National plc [2008] EWHC 875 (Comm) at [76]-[80].

199 Consistent with that reasoning, the imposition of Exception Fee 1 did not arise because of,

or involve, a breach of contract. The Exception Fee was not payable upon any element of the

contract which viewed, as a matter of substance, involved breach.

200 The next question is whether the liability to pay the Honour Fee was a collateral (or

accessory) to a primary stipulation in favour of ANZ?

201 Mr Paciocco contended that the Honour Fee was payable upon such a stipulation.

Mr Paciocco submitted that an overdraw was not just any event but an event coloured by the

language of the contract and its inherent circumstances which “make it clear that it is an event

which [ANZ] wished to discourage occurring”. As Mr Paciocco submitted:

Not overdrawing was a “desired act” from the Bank’s point of view; it did not want customers to overdraw their accounts. The contractual provisions were expressed in language strongly discouraging the customer from overdrawing. In the case of credit cards … the customer “must not” exceed the credit limit without ANZ’s authorisation, and so far as the Savings Account was concerned the customer “must not overdraw” without prior arrangement being agreed with ANZ. The inherent circumstances … show that ANZ regarded accounts as being “out of order”, or requiring action to rectify or correct them.

62

As a matter of construction and taking into account the inherent circumstances, the Exception Fees were intended by ANZ to stand in terrorem of failure by the customer to keep the account in order. They were known by bank officers to be so intended – as their “whole point” was to effect behavioural control and ensure customers kept their account in order. … Even if it is correct to say that the fee is payable by a customer “in response to a request for credit”…, that does not mean that fee is not also payable upon failure of a stipulation. The two are not mutually exclusive. (Emphasis in original.)

202 Those contentions are rejected. They are rejected because the Honour Fee is not payable

upon failure of a stipulation. ANZ was not bound to meet the customer’s request. The liability to

pay the fee arose as a result of, and in exchange for, something more than and different from that

which had existed up to that point in time. Properly construed, the provision which entitled ANZ

to charge the Honour Fee did not impose a fee to be regarded as security for performance by the

customer of other obligations to ANZ. It was a fee charged in accordance with pre-existing

arrangements according to whether ANZ chose to provide something more and further to the

customer. In the present case, it was a fee charged by ANZ for authorising payments upon

instructions by Mr Paciocco upon which ANZ otherwise was not obliged to act: see [33]-[38]

above.

Shadow limits

203 The Exception Fee Events giving rise to Exception Fee 1 record that the overdrawings that

led to the imposition of the Exception Fee were within the shadow limit. Shadow limits have

been considered at [101] above. That a bank chooses to honour certain payments automatically

does not, in any respect, alter the substance of the preceding analysis: see [196]-[202] above.

204 The setting of a shadow limit by a bank may well be administratively convenient.

Its adoption constitutes no more than the adoption of a particular rule which will dictate the

bank’s decision in a particular case. That rule reflects a decision by the bank that it will meet

certain requests. Neither adopting nor implementing the rule alters either the nature or the validity

of the analysis in [196]-[202] above. The decisions that are made either individually, or in the

form of a general rule, about the provision of further accommodation are each driven by the

bank’s assessment of the risks attached to a particular transaction by a particular account holder.

It matters not whether that assessment is made by a bank officer considering the circumstances of

a particular transaction by a particular account holder or by one or more bank officers formulating

63

a general rule which is then applied to a particular transaction by a particular account holder either

electronically or otherwise.

(d) Extravagant and unconscionable – step 5

205 In light of the views just formed, it is strictly unnecessary to consider this question.

However, it is appropriate to consider the following submissions.

206 Mr Paciocco submitted that the Court was required to consider the substance of the

arrangements, “based on the evidence and not be beguiled into acceptance of notions of

theoretical deemed requests for financial accommodation, and non-existent considerations of

those requests”. Mr Paciocco sought to submit that an analysis of the kind just undertaken was

incomplete in the sense that it was insufficient to reveal whether ANZ’s conduct in charging the

Honour Fee was unconscientious. Some at least of Mr Paciocco’s submissions appealed to what

he described as subjective to ANZ. As explained at [41] and [126] above, I consider those

considerations not to be relevant.

207 Whether or not that is so, Mr Paciocco’s analysis fails to take account of two fundamental

considerations. First, the customer “chose” to give the instruction which constituted the request

for further accommodation. The fact that Mr Paciocco may not have averted to the state of his

account with the bank before issuing the instruction does not alter the fact that it was he alone

who chose to issue the instruction to the Bank. The second point is that ANZ was not bound to

meet the instruction. But, if it chose to do so, the terms on which it would meet the instruction

had been notified to, and agreed by, Mr Paciocco.

208 Other considerations to which Mr Paciocco referred including, in particular, what he

described as ANZ’s desire to maximise its fees, neither permits nor requires the conclusion that

ANZ acted unconscionably in charging the agreed fee to provide accommodation which

Mr Paciocco sought and ANZ was not bound to provide.

Dr Jenkins and “service”

209 ANZ engaged Dr Jenkins, an economist, to provide her opinion on whether

“the circumstances surrounding the charging of exception fees” gave rise to the supply of one or

more services by ANZ to the Applicants, and if so, what the nature of those services was and what

the benefit (if any) was that the Applicants received from those services. Those questions were

not directed at the particular Exception Fees charged by ANZ against Mr Paciocco and/or SDG’s

accounts, and Dr Jenkins did not consider the questions she was asked in relation to Mr Paciocco

64

and/or SDG specifically. Her focus was on a “broader group”. As she stated in cross-

examination, she “examin[ed] markets at a general level and from that [drew] conclusions about

the behaviour of individuals”. Dr Jenkins did not seek to identify any of the subjective

characteristics of Mr Paciocco, for example, that may have influenced him in wanting the

provision of a particular credit facility at any particular time. She did not seek any specific

information about him as an individual, or of his motivations. She was not provided with a copy

of, and did not read, Mr Paciocco’s affidavit.

210 Unsurprisingly, Dr Jenkins’ evidence was vague and generalised. It involved a summary

of generalised conclusions containing such banalities as “the main characteristic of a service is

that it conveys a benefit to the customer”, “I find that consumers enjoy several benefits associated

with the possibility to go into unarranged overdraft”, and “[w]hen a transaction is honoured,

consumers benefit from the flexibility of being able to meet wants or needs immediately”.

Such evidence does not assist the Court.

211 Finally, in this context, mention should be made of Abbey National, in which the United

Kingdom Supreme Court held that charges for unauthorised overdrafts (equivalent to honour fees)

were consideration for the package of banking services supplied to personal current (transaction)

account customers. That decision does not advance ANZ’s case. The regulatory framework is

different. The terms of the “arrangements” between the bank and the customer are different.

There can be no automatic application of what is said by the United Kingdom Supreme Court to

the Exception Fees in issue in this case.


212 In light of the views just formed, it is unnecessary to consider this question.

(2) Overlimit Fees on the Card Accounts: Exception Fees 12 and 13






(b) Events or transactions giving rise to the imposition of Exception Fees 12 and 13 – step 2


65

215 In relation to Exception Fee 12, at the commencement of 28 July 2009 the opening balance

of Card Account 9629 was $0 and the credit limit on the account was $4,000. The shadow limit

on the account at that time was $120. On 28 July 2009, two events occurred. Mr Paciocco

obtained a cash advance of $4,000 which was debited to the account, resulting in a debit balance

of $4,000 and then a cash advance fee of $80.00 was also debited to the account, resulting in a

debit balance of $4,080. On 12 August 2009, and as a consequence of the debiting of the cash

advance fee to the account, an Overlimit Fee of $35 – Exception Fee 12 – was charged to the

account. The next payment that was made was a payment of $4,300 on 4 September 2009, which

brought the account back within its credit limit.

216 In relation to Exception Fee 13, at the commencement of 4 August 2009, the opening

balance of Card Account 9522 was $14,878.33, the credit limit on the account was $15,000 and

the shadow limit was $1,500. On 4 August 2009, two events occurred. A recurring direct debit of

$245.54 in favour of ‘Norwich Union Life Melbourne’ was initiated (processed on 5 August

2009), resulting in a debit balance of $15,123.87 and a recurring direct debit of $612.02 in favour

of ‘Norwich Union Life Melbourne’ was initiated (processed on 5 August 2009), resulting in a

debit balance of $15,735.89. Then, on 11 August 2009 (and processed on 12 August 2009)

Mr Paciocco initiated an EFTPOS debit transaction of $143.95 in favour of ‘Medibank NSW

Contribt Melbourne’, resulting in a debit balance of $15,879.84. On 6 September 2009, as a

consequence of these three transactions which each overdrew the account within its shadow limit,

an Overlimit Fee in the amount of $35 – Exception Fee 13 – was charged to the account. The first

two transactions were recurring direct debits on a MasterCard which were processed as EFTPOS

transactions and authorised by CTM. The third transaction was authorised by CTM. The next

payment that was made was a payment of $1,000 made on 12 August 2009, which brought the

account back within its credit limit.

217 The evidence, in a general sense, disclosed that when a transaction is initiated on a card

account, an electronic process (ANZ’s Overlimit Process) determines whether a transaction on a

card account will be approved by ANZ or declined. That process approves a transaction where it

would not cause the account to exceed the credit limit by an amount beyond the shadow limit.

218 The shadow limit was calculated by TRIAD. TRIAD calculated a consumer credit card

account’s shadow limit based on a number of factors including the customer’s historical account

behaviour. In the case of Mr Paciocco, the shadow limits varied between the two Card Accounts

and varied over time.

66

219 ANZ’s Overlimit Process was undertaken by ANZ’s Core Transaction Management

system (CTM). CTM dealt with the requests for authorisation of transactions on card accounts.

There are other systems which may authorise overdraw transactions on a card account. In relation

to Mr Paciocco, the MasterCard scheme is relevant. That scheme directs that for recurring

transactions (where the card holder has provided instructions to a merchant by way of an ongoing

authority), the electronic transaction is not required to include a request from the acquirer to ANZ

to decide whether to approve or decline the transaction (subject to the proviso that ANZ may

“charge back” to the acquirer in specified circumstances). The scheme provides for the pre-

approval of the recurring transaction.


220 Mr Paciocco submitted that each of Exception Fees 12 and 13 was payable upon breach of

contract and further or alternatively, the liability to pay the Overlimit Fee was collateral (or an

accessory) to a primary stipulation in favour of ANZ.

221 For the same reasons as Exception Fee 1 (see [196]-[204] above), those contentions are

rejected.

222 The Overlimit Fee (despite the different nomenclature) is substantively not different to the

Honour Fee. Significantly, the July 2009 Conditions of Use stated (see [60] above):

You must not exceed the credit limit unless ANZ has consented in writing or ANZ otherwise authorises the transaction which results in the account holder’s outstanding balance exceeding the credit limit. (Emphasis added.)

223 That is what occurred here in relation to Exception Fees 12 and 13. The clause expressly

provided for that which Mr Paciocco contended was prohibited; the overdrawing of the account.

That action required (as the clause stated) the consensual conduct of ANZ and Mr Paciocco.

For the transaction to proceed, ANZ had to agree to and authorise the transaction: see [192]-[195]

above. The overdraw transaction was a request by the customer for an advance or loan from ANZ

which ANZ had the discretion to approve or disapprove: see [93] above. The overlimit fee

became payable upon the customer initiating an overdraw transaction and ANZ exercising its

discretion to approve the loan. The card account expressly contemplated the occurrence of

overdraw transactions and stipulated that ANZ had a discretion to authorise the transaction and

67

allow it to proceed. The events for which the fee was charged could not be a breach of a

contractual obligation.

224 An overlimit fee was not charged in order to secure the performance of a primary

stipulation not to overdraw the account or initiate an overdraw transaction. Rather, the customer

was entitled to initiate such a transaction and the fee was payable in respect of ANZ’s

consideration of and decision in respect of the request for a further advance. The fee was charged

if ANZ chose to allow the transaction and thereby approve the request for additional borrowing.

Moreover, an overlimit fee was charged once per month, regardless of how many transactions

occurred in that month which caused the credit limit to be exceeded: see [61]-[62] above. The fee

was not payable upon a failure of a stipulation. It was payable in respect of ANZ’s response to

the request for further borrowing. Indeed, it was not payable each time that a request and

response was made. It was only payable once per month.

225 As was the position with Saving Account 156, it was within ANZ’s power to prevent

Mr Paciocco from overdrawing his Card Accounts. There was no necessity for ANZ to

accommodate such informal requests for additional borrowings and exercise any discretion with

respect to the requests. ANZ could have elected not to permit Mr Paciocco to overdraw at all.

Instead of preventing overdraw transactions, ANZ anticipated and planned for such transactions

and developed procedures and systems to assess and determine whether to allow the overdrawing

to occur. The fact that ANZ chose to accommodate these informal requests, when there was no

necessity for it to do so, supports the conclusion that the overlimit fee cannot be characterised as

security for the performance of a stipulation, especially a stipulation not to overdraw the credit

limit. As noted above, the overlimit fee was a consensual additional obligation in the card

account and not a penalty. The term imposed a fee in circumstances where Mr Paciocco had the

right to initiate a transaction that would exceed the credit limit, thereby seeking further

accommodation from ANZ, and the fee was payable for ANZ’s consideration and approval of the

relevant instruction.

226 Both Exception Fees 12 and 13 arose in the context of transactions with the shadow limit.

For the reasons set out at [203]-[204] above, that a bank chooses to honour certain payments

automatically does not, in any respect, alter the substance of that analysis.

227 Likewise, ANZ’s choice to enter into the MasterCard scheme which will entail the “force

posting” of certain kinds of transactions presents no different issue from those considered in the

immediately preceding paragraphs: see [219] above. Again, ANZ has chosen to adopt a set of

68

rules of general application which will, if the relevant circumstances arise, be applied in a

particular transaction instigated by a particular account holder.



However, for the same reasons as set out at [206]-[211] above, neither Exception Fee 12 nor 13 is

otherwise extravagant and unconscionable.



(3) Non-Payment Fees: Exception Fees 2 and 3

230 These Exception Fees are unusual. ANZ accepted that Mr Paciocco is entitled to common

law damages for breach of contract in the sum of the amount of Exception Fee 2 and Exception

Fee 3 from the date of the charging of each Exception Fee together with interest. Mr Paciocco’s

entitlement to those damages arises because ANZ admitted that the applicable contractual

arrangements between ANZ and Mr Paciocco in relation to his Saving Account 156 did not permit

ANZ to charge each of those Non-Payment Fees.

231 At the time Exception Fees 2 and 3 were charged, Saving Account 156 was governed by

the terms and conditions set out in the August 2008 Terms and Conditions and the August 2008

Fees and Charges Booklet (collectively, the PP Terms). The PP Terms defined “Periodical

Payment” and set out the circumstances in which ANZ was contractually entitled to charge a

Periodical Payment Non-Payment Fee to that account. The August 2008 Terms and Conditions

relevantly provided:

1. at cl 2.6 that “A Periodical Payment is a debit from your ANZ account, which you instruct

ANZ to make to the account of another person or business”;

2. at cl 2.7 that “A Periodical Payment Non-Payment Fee is charged if you have authorised a

Periodical Payment that is not made because there are insufficient cleared funds in your

account”.

The PP Terms did not contain any other terms relevant to the imposition of Periodical Payment

Non-Payment Fees.

232 In the case of each of Exception Fees 2 and 3, the Exception Fees were charged and

extracted as a consequence of Mr Paciocco initiating an instruction to ANZ to make a payment

69

from Saving Account 156 to a home loan account held by him with ANZ (Paciocco Home Loan

Account). The Paciocco Home Loan Account was not an “account of another person or business”

within the definition of Periodical Payment in cl 2.6. Any instruction by Mr Paciocco to make

payments from Saving Account 156 to the Home Loan Account was not an instruction to make a

Periodical Payment within the meaning of cl 2.6 and, as a consequence, Exception Fees 2 and 3

were not authorised by the PP Terms or any other term of any contract between Mr Paciocco and

ANZ and were debited to the Account in breach of contract.

233 Mr Paciocco is entitled to common law damages for breach of contract in the sum of the

amount of Exception Fee 2 and Exception Fee 3 from the date of the charging of Exception Fee 2

and Exception Fee 3 together with interest. It is therefore strictly unnecessary to consider

Mr Paciocco’s contention that the Savings Non-Payment Fee was a penalty at law and in equity.

For present purposes, it is sufficient to record that for the reasons explained at [270]-[273] below,

each Non-Payment Exception Fee Provision and Exception Fee (Exception Fees 2 and 3) was not

penal.

D. POST DECEMBER 2009 – LATE PAYMENT FEES

234 In the post December 2009 period, the only Exception Fees the Applicants alleged were

payable upon breach was the Late Payment Fee: Exception Fees 14, 16-18, 23, 27, 28, 31, 34, 36-

38, 41, 42, 45-47 and 49. The Applicants continued to contend that the other Exception Fees were

a penalty in equity.

(1) Exception Fees 14, 16-18, 23, 27, 28, 31, 34, 36-38, 41, 42, 45-47 and 49





The relevant circumstances included the matters listed in Part 6, Section B(1)(d) above.



237 In relation to Exception Fee 14, the account statement dated 13 December 2009 had a

closing balance of $2,145.60 (Dr), and required a ‘Minimum Monthly Payment’ of $43 by the

‘Due Date’ of 7 January 2010. No such payment was made. As a result, the late payment fee was

70

charged on 12 January 2010. On 3 February 2010 at 12:23pm, a member of ANZ’s Collections

Team made an outbound call to Mr Paciocco lasting 6.40 minutes, during which Mr Paciocco

promised to pay $2000 that same day, and was advised of ‘Next Monthly Payment’, ‘Not To Use

Card’ and to ‘Call Back If Problems’. The notes of the call record that the account was assigned

to a class designating Mr Paciocco as a ‘Very Important Person’, designating that he was a

customer ‘with significant lending with ANZ’. The next payment that was made was a payment

of $2,000 on 3 February 2010.

238 The Exception Fee Events giving rise to the other Late Payment Fees on the Card

Accounts were all different: see the column entitled Transaction(s)/Event(s) in Annexure 1.


239 Mr Paciocco submitted that the Late Payment Fee was payable upon breach of contract

and further or alternatively, the liability to pay the Late Payment Fee was collateral (or an

accessory) to a primary stipulation in favour of ANZ. The language of the relevant Exception Fee

Provisions had changed: cf Exception Fees 4-11 (see [54]-[58] above). Despite that change in

language, the Late Payment Fee remained payable on breach and further or alternatively,

the liability to pay the Late Payment Fee was collateral (or an accessory) to a primary stipulation

in favour of ANZ: see [114]-[116] and [180]-[182] above.


240 For the reasons set out at [117]-[169] above, each Late Payment Fee is extravagant and

unconscionable.


241 As with Exception Fees 4 and 5-11, the circumstances do not permit the loss to be assessed

with certainty: see [173] and [186] above. The calculation or estimation of loss is difficult but it

is not impossible. It is therefore necessary to estimate the value of the loss. Again, I accept that

some guesswork and speculation is necessary and appropriate. Having regard to the evidence

before the Court, I am satisfied on the balance of probabilities that ANZ suffered some loss or

damage by reason of the late payment event and that the quantum of that loss or damage is no

more than the operational (collections) costs identified by Mr Regan rounded up to the nearest

half dollar. Of course, in relation to those fees where Mr Regan identified no operational

(collection) costs, the loss or damage is assessed at $0.50.

71

242 The three other matters earlier identified (see [174] above) apply equally to these Late

Payment Fees.

E. POST DECEMBER 2009 – OVERLIMIT, HONOUR AND DISHONOUR FEES

(1) Overlimit Fees (Exception Fees 15, 19-22, 24-26, 29, 30, 32, 33, 35, 39, 40, 43, 44, 48 and 50)








The events and transactions varied from one Exception Fee to the other.

245 ANZ’s Overlimit Process applied to these Exception Fees and has been set out earlier:

see [217]-[219] above.


246 Mr Paciocco accepted that each Overlimit Fee was not payable upon breach of contract but

contended that the liability to pay the Overlimit Fee was collateral (or an accessory) to a primary

stipulation in favour of ANZ.

247 For the same reasons as Exception Fee 1 (see [200]-[204] above), those contentions are

rejected.

248 As noted in the context of Exception Fees 12 and 13 (see [222] above), the Overlimit Fee

(despite the different nomenclature) is substantively not different to the Honour Fee.

Significantly, the March 2010 Conditions of Use stated:

… (b) From time to time, there may be a debit made to your credit card account

which, if processed, would temporarily result in the outstanding balance exceeding your credit limit. ANZ has an Informal Overlimit service to help you in these circumstances.

(c) When a debit is initiated which, if processed, would result in the

72

outstanding balance temporarily exceeding your credit limit, you make a request for an Informal Overlimit amount. ANZ will consider your request for an Informal Overlimit amount and, if both the debit and the account holder satisfy ANZ’s credit criteria for Informal Overlimit amounts, ANZ will allow the debit to be processed as an Informal Overlimit amount, on the following terms:

… (e) Any withdrawal, transfer or payment from the credit card account will be

made firstly from any positive (Cr) balance and secondly from any available credit in the credit card account. An Informal Overlimit amount will only be provided if there is no available credit in the credit card account and both the debit and the account holder satisfy ANZ’s criteria for Informal Overlimit amounts.

(Emphasis added.)

249 That action required (as the clause stated) the consensual conduct of ANZ and

Mr Paciocco. For the transaction to proceed, ANZ had to agree to and authorise the transaction:

see [192]-[195] above. The overdraw transaction was a request by the customer for an advance or

loan from ANZ which ANZ had the discretion to approve or disapprove: see [93] above.

The overlimit fee became payable upon the customer initiating an overdraw transaction and ANZ

exercising its discretion to approve the loan. The card account expressly contemplated the

occurrence of overdraw transactions and stipulated that ANZ had a discretion to authorise the

transaction and allow it to proceed. The overlimit fee was not charged in order to secure the

performance of a primary stipulation not to overdraw the account or initiate an overdraw

transaction. Rather, the customer was entitled to initiate such a transaction and the fee was

payable in respect of ANZ’s consideration of and decision in respect of the request for a further

advance. The fee was charged if ANZ chose to allow the transaction and thereby approve the

request for additional borrowing. Moreover, an overlimit fee was charged once per month,

regardless of how many transactions occurred in that month which caused the credit limit to be

exceeded: see [78]-[79] above. The fee was not payable upon a failure of a stipulation. It was

payable in respect of ANZ’s response to the request for further borrowing. Indeed, it was not

payable each time that a request and response was made. It was only payable once per month.

250 As was the position with Saving Account 156, it was within ANZ’s power to prevent

Mr Paciocco from overdrawing his Card Accounts. There was no necessity for ANZ to

accommodate such informal requests for additional borrowings and exercise any discretion with

respect to the requests. ANZ could have elected not to permit Mr Paciocco to overdraw at all.

Instead of preventing overdraw transactions, ANZ anticipated and planned for such transactions

73

and developed procedures and systems to assess and determine whether to allow the overdrawing

to occur. The fact that ANZ chose to accommodate these informal requests, when there was no

necessity for it to do so, supports the conclusion that the Overlimit Fee cannot be characterised as

security for the performance of a stipulation, especially a stipulation not to overdraw the credit

limit. As noted above, the Overlimit Fee was a consensual additional obligation in the card

account and not a penalty. The term imposed a fee in circumstances where Mr Paciocco had the


accommodation from ANZ and the Overlimit Fee was payable for ANZ’s consideration and

approval of the relevant instruction.

251 Each Exception Fee arose in the context of transactions with the shadow limit. For the

reasons set out at [203]-[204] above, that a bank chooses to honour certain payments




However, for the same reasons as set out at [206]-[211] above, none of these Overlimit Fees was




(2) Business Honour Fees (Exception Fees 51-61 and 72)









256 Business Accounts were divided into centrally managed accounts or relationship managed

accounts. Before October 2012, customers with borrowings of about $500,000 or more were

74

serviced by a relationship manager. After October 2012, the threshold increased to $1 million.

Business Account 58555 was centrally managed.

257 ANZ’s response to an overdraw transaction on a centrally managed business account,

other than a periodical payment, is governed by the Auto Honour process and the NSF process.

The Auto Honour and NSF processes operate in the same manner as described above in respect of

saving accounts save that there is a separate business division of NSF: see [192]-[195]

above. For at least 30% of business transactions, the NSF team member contacts the customer to

obtain further information in respect of the transaction.


258 Mr Paciocco accepted that each Honour Fee was not payable upon breach of contract but

contended that the liability to pay the Honour Fee was collateral (or an accessory) to a primary


259 For the same reasons as Exception Fee 1 (see [200]-[204]), those contentions are rejected.

260 These Business Honour Fees are substantively not different to the Saving Honour Fee

(Exception Fee 1). The action required (as the clause stated) the consensual conduct of ANZ and

SDG. For the transaction to proceed, SDG had to satisfy ANZ’s credit criteria for an Informal

Overdraft facility and, if it did, ANZ agreed to and authorised the transaction: see [84]-[85] and

[192]-[195] above. The overdraw transaction was a request by SDG for an advance or loan from

ANZ which ANZ had to approve or disapprove: see [93] above. The Honour Fee became

payable upon SDG initiating an overdraw transaction and ANZ deciding to approve the facility.

The contract expressly contemplated the occurrence of overdraw transactions and stipulated when

ANZ would authorise the transaction and allow it to proceed.

261 The Honour Fee was not charged in order to secure the performance of a primary

stipulation not to overdraw the account or initiate an overdraw transaction. Rather, SDG was

entitled to initiate such a transaction and the Honour Fee was payable in respect of ANZ’s

consideration of and decision in respect of the request for a further advance. The Honour fee was

charged if ANZ chose to allow the transaction and thereby approve the request for additional

borrowing.

262 Moreover, an honour fee was charged once per day, regardless of how many transactions

occurred on that day which caused the credit limit to be exceeded: see [84] and [88] above.

The Honour Fee was not payable upon a failure of a stipulation. It was payable in respect of

75

ANZ’s response to the request for further borrowing. Indeed, it was not payable each time that a

request and response was made. It was only payable once per day.

263 As was the position with Saving Account 156, it was within ANZ’s power to prevent SDG

from overdrawing Business Account 58555. There was no necessity for ANZ to accommodate

such informal requests for additional borrowings. ANZ could have elected not to permit SDG to

overdraw. Instead of preventing overdraw transactions, ANZ anticipated and planned for such

transactions and developed procedures and systems to assess and determine whether to allow the

overdrawing to occur. The fact that ANZ chose to accommodate these informal requests, when

there was no necessity for it to do so, supports the conclusion that the Honour Fee cannot be

characterised as security for the performance of a stipulation, especially a stipulation not to

overdraw the credit limit. As noted above, the Honour Fee was a consensual additional obligation

in the contract and not a penalty. The term imposed a fee in circumstances where SDG had the


accommodation from ANZ, and the fee was payable for ANZ’s consideration and approval of the

relevant instruction.

264 Each Exception Fee arose in the context of transactions with the shadow limit. For the

reasons set out at [203]-[204] above, that a bank chooses to honour certain payments




However, for the same reasons as set out at [206]-[211] above, none of these Honour Fees was




(3) Business Dishonour Fees (Exception Fees 62-71)




entitled “Extract of Specific Exception Fee Provision” in Annexure 1 and [90] above. The other

relevant circumstances include the matters listed in Part 6, Section B(1)(d) above.

76




269 As explained at [256] above, Business Accounts were divided into centrally managed

accounts or relationship managed accounts. Business Account 58555 was centrally managed.

Accordingly, the Auto Honour and NSF processes applied: see [192]-[195] above.


270 Mr Paciocco accepted that each Dishonour Fee was not payable upon breach of contract

but contended that the liability to pay the Dishonour Fee was collateral (or an accessory) to a

primary stipulation in favour of ANZ.

271 As explained at [200]-[204] above, I do not accept that the Honour Fee ANZ charged for

further accommodation is a penalty. Nor do I consider each Dishonour Fee was a penalty.

By issuing an instruction to the bank which, if honoured, would take the relevant account beyond

its limit, the customer asks the bank to provide further accommodation: cf Abbey National at

[371]-[372]. Again, the fact that the customer may not avert to the state of his account must not

obscure the fact that it is the customer who issues the relevant instruction constituting the request

for further accommodation. If the bank refuses to meet that instruction, the application which the

customer has made is rejected. But the fee the bank charges as a dishonour fee is a fee charged in

return for the bank considering (and ultimately rejecting) the customer’s request. There is in my

view, nothing unconscionable in the bank charging a fee to consider and reject an application

which the customer has “chosen” to make, which is an application to alter the agreed terms of the

credit facility between the bank and the customer. Again, that the bank chooses to set that fee at

whatever the market will permit it to charge does not either alone or in conjunction with any of

the other considerations to which Mr Paciocco referred make the Dishonour Fee or the provision

which imposes it a penalty.

272 Dishonour and Non-Payment Fees were charged by ANZ as a consequence of a customer

issuing certain types of payment instruction to ANZ (cheques and direct debits in the case of

dishonour fees and periodical payments in the case of non-payment fees) that would have the

effect, if honoured, of overdrawing the customer’s account or exceeding the account credit limit

and ANZ not approving or authorising the instruction: Andrews Trial at [207], [208], [214], [328]

77

and [331]. The liability to pay the Dishonour Fee was not collateral (or an accessory) to a primary




However, for the same reasons as set out at [206]-[211] above, none of these Honour Fees was




PART 7: UNCONSCIONABLE CONDUCT

A. INTRODUCTION

275 There were two applicable unconscionable conduct regimes – under the ASIC Act and the

FTA.

276 In respect of the Saving and Card Accounts, the Applicants alleged that ANZ engaged in

unconscionable conduct in contravention of s 12CB of the ASIC Act and, in respect of conduct

prior to 1 January 2011, also s 8 of the FTA by entering into, and giving effect to, those contracts

with the Applicants (and in particular, in giving effect to the Exception Fees). In respect of the

Business Account, the Applicants alleged that ANZ engaged in unconscionable conduct in

contravention of:

1. in respect of conduct prior to 1 January 2011, s 12CC of the ASIC Act and/or s 8A of the

FTA (now repealed and contained in the Australian Consumer Law found in Sch 2 to the

Competition and Consumer Act 2010 (Cth) (ACL));

2. in respect of conduct on or after 1 January 2011 and prior to 1 January 2012, s 12CC of the

ASIC Act; and

3. in respect of conduct on or after 1 January 2012, s 12CB of the ASIC Act,

by entering into, and giving effect to, those contracts with the Applicants. (It should be noted that

the final submissions of both parties referred to s 8 of the FTA. That was an error. Section 8A,

not s 8, is concerned with business transactions.)

78

277 The Exception Fees and the applicable statutory provisions in issue were as follows:

s 12CB of ASIC Act

s 8 of FTA s 12CC of ASIC Act

s 8A of FTA ASIC Consolidated Regime

Saving Honour Fee

Exception Fee 1

Exception Fee 1

Overlimit Fee Exception Fees 12, 13, 15, 19

Exception Fees 12, 13, 15

Exception Fees 20-22, 24-26, 29-30, 32-33, 35, 39, 40, 43-44, 48 and 50

Business Honour Fee

Exception Fees 51-54


Exception Fees 55-61 and 72

Business Dishonour Fee


278 It was common ground that it was not necessary to consider Late Payment Fees under this

heading having formed the view that the Late Payment Fees were a penalty at law and further and

alternatively, a penalty in equity. Given ANZ’s admissions in relation to Exception Fees 2 and 3,

it is also not necessary to address those Exception Fees under this heading.

B. APPLICABLE LEGAL PRINCIPLES

279 There was no dispute concerning the field of operation of the various statutory prohibitions

against unconscionable conduct in the FTA and the ASIC Act. It was common ground that the

statutory prohibitions against unconscionable conduct in the ASIC Act, the FTA and now the

ACL (and its predecessors) are materially the same and the case law concerning the latter is

applicable to the former.

280 In general terms, the unconscionable conduct regimes of both the ASIC Act and the FTA

provide that a person must not engage in conduct which is, in all the circumstances,

unconscionable: ss 12CB(1) of the ASIC Act (pre 1 January 2012); ss 8(1) and 8A(1) of the FTA.

281 In determining whether conduct is unconscionable, the Court:

1. may have regard to any matter in determining whether matter is unconscionable:

ASIC Act (pre 1 Jan 2012) – ss 12CB(2) and s 12CC(2); ASIC Act (post 1 Jan 2012) –

s 12CC(1) and FTA – ss 8(2) and 8A(3);

2. except in relation to unconscionable conduct in business transactions, may have regard to

conduct engaged in, or circumstances existing, before the commencement of the relevant

79

section of the statute: ASIC Act (pre 1 Jan 2012) – ss 12CB(4)(b) and 12CC(5)(b); ASIC

Act (post 1 Jan 2012) – s 12CB(3)(b) and FTA ss 8(4)(b) and s 8A(6)(b); and

3. must not have regard to any circumstances that were not reasonably foreseeable at the time

of the alleged contravention: ASIC Act (pre 1 Jan 2012) – ss 12CB(4)(a) and 12CC(5)(a);

ASIC Act (post 1 Jan 2012) – s 12CB(3)(a) and FTA ss 8(4)(a) and 8A(6)(a).

282 Further, after 1 January 2012, s 12CB(4)(c) of the ASIC Act states that in considering

whether conduct to which a contract relates is unconscionable, a court’s consideration of the

contract may include consideration of the terms of the contract and the manner in which and the

extent to which the contract is carried out, and is not limited to consideration of the circumstances

relating to formation of the contract.

283 The term “unconscionable” is not defined in the ASIC Act or the FTA. It is to be given its

ordinary meaning, being something done not in good conscience and that which is irreconcilable

with what is right or reasonable: Australian Competition and Consumer Commission v

CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51 at [42]; Australian Securities and Investments

Commission v National Exchange Pty Ltd (2005) 148 FCR 132; Australian Competition and

Consumer Commission v Lux Distributors Pty Ltd [2013] ATPR 42-447 at [41]; Hurley v

McDonald’s Australia Ltd (2000) ATPR 41-741 at [22] and [31] cited with approval in Ange v

First East Auction Holdings Pty Ltd (2011) 284 ALR 638 at [96] and [104] and followed in

Australian Competition and Consumer Commission v Simply No-Knead Franchising Pty Ltd

(2000) 104 FCR 253 at [30]; Australian Competition and Consumer Commission v 4WD Systems

Pty Ltd (2003) 200 ALR 491 at [183]-[185]; Australian Competition and Consumer Commission v

Allphones Retail Pty Ltd (No 2) (2009) 253 ALR 324 at [113] and Perdaman Chemicals and

Fertilisers Pty Ltd v ICICI Bank Ltd [2013] FCA 175 at [22].

284 In Tonto Home Loans Australia Pty Ltd v Tavares (2011) 15 BPR 29,699 at [291],

Allsop P (as he then was) summarised the meaning of statutory unconscionable conduct in the

following terms:

Aspects of the content of the word “unconscionable” include the following: the conduct must demonstrate a high level of moral obloquy on the part of the person said to have acted unconscionably: Attorney General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557 at 583; the conduct must be irreconcilable with what is right or reasonable: Australian Securities and Investments Commission v National Exchange Pty Ltd [2005] FCAFC 226; 148 FCR 132 at 140; Australian Competition and Consumer Commission v Samton Holdings Pty Ltd [2002] FCA 62; 117 FCR 301 at 316-317; Qantas Airways Ltd v Cameron (1996) 66 FCR 246 at 262; ... the concept of unconscionable in this context is

80

wider than the general law and the provisions are intended to build on and not be constrained by cases at genera/law and equity: National Exchange at 140; the statutory provisions focus on the conduct of the person said to have acted unconscionably: National Exchange at 143. It is neither possible nor desirable to provide a comprehensive definition. The range of conduct is wide and can include bullying and thuggish behaviour, undue pressure and unfair tactics, taking advantage of vulnerability or lack of understanding, trickery or misleading conduct. A finding requires an examination of all the circumstances.

See also Lux Distributors at [23] and Director of Consumer Affairs Victoria v Scully (2013) 303

ALR 168.

285 As the Court said in Lux at [23]:

The task of the Court is the evaluation of the facts by reference to a normative standard of conscience. That normative standard is permeated with accepted and acceptable community values. In some contexts, such values are contestable. Here, however, they can be seen to be honesty and fairness in the dealing with consumers. The content of those values is not solely governed by the legislature, but the legislature may illuminate, elaborate and develop those norms and values by the act of legislating, and thus standard setting. The existence of State legislation directed to elements of fairness is a fact to be taken into account. It assists the Court in appreciating some aspects of the publicly recognised content of fairness, without in any way constricting it. Values, norms and community expectations can develop and change over time. Customary morality develops “silently and unconsciously from one age to another”, shaping law and legal values: Cardozo, The Nature of the Judicial Process (Newhaven, Yale University Press, 1921) pp 104-105. These laws of the States and the operative provisions of the ACL reinforce the recognised societal values and expectations that consumers will be dealt with honestly, fairly and without deception or unfair pressure. These considerations are central to the evaluation of the facts by reference to the operative norm of required conscionable conduct.

C. APPLICANTS’ SUBMISSIONS

286 What then were said by the Applicants to be the matters that informed the

“unconscionable” conduct in the present case? It was common ground that the question may be

posed both at the time of contact and at any time during the performance of the contract.

287 The Applicants referred to the following matters:

1. ANZ had all or most of the bargaining power in its relationship with the Applicants;

2. The Exception Fees were imposed by standard form contracts drafted by ANZ which did

not take into account the specific characteristics of the Applicants, were presented to the

Applicants without negotiation on a take it or leave it basis, gave the Applicants no

reciprocal rights for any failure by ANZ of its obligations under the contracts but gave

ANZ a contractual right to:

81

2.1 vary unilaterally terms or conditions of the accounts including the terms and

conditions relating to the Exception Fees, which it did;

2.2 charge the same fees no matter how small the default which constituted the

Exception Fee Event;

2.3 charge the same fee regardless of whether ANZ held security as it did for

Mr Paciocco; and

2.4 charge the same fees regardless of whether the applicants held other accounts in

credit (or had credit available) or of whether ANZ was in a position to combine

accounts (as it was entitled to do so).

3. the Exception Fees were imposed in contracts governing the supply of essential services

where the termination of the contracts by the Applicants was attended by significant

inconvenience so as to dissuade the Applicants from switching banks and where

discovering equivalent products which did not incur these exception fees was difficult and

time consuming;

4. the fees were most likely to be paid by low income customers in financial difficulty;

5. the quantum of the fees was out of proportion to the loss, if any, that ANZ was likely to

suffer from the event triggering the fee;

6. ANZ would act inconsistently between customers and between different events with the

same customer. On occasion, when faced with a complaint by a customer that an

exception fee was unfair or exorbitant, ANZ would respond by waiving the fee for that

customer;

7. in charging the Exception Fees, ANZ allowed, took advantage of and profited from the

fact that the Applicants initiated the events irrationally, inadvertently, unintentionally and

as the result of accident, oversight or mismanagement of finances, where the applicants did

not consider that they were making requests for credit when they incurred the fee and

where they had other credit available at no or significant cost;

8. ANZ was uniquely placed to prevent customers inadvertently triggering most if not all

exception fees;

9. The Exception Fees were charged regardless of whether they were caused by ANZ’s

payment systems (including shadow limits) and were thus incurred beyond the control or

understanding of the customer; and

82

10. For Saving Honour Fees, Business Honour Fees and Card Overlimit Fees, ANZ charged

interest on the overdrawn sum (which included a profit margin) and was thereby fully

compensated.

288 For the period post December 2009, the Applicants relied upon additional conduct –

the deletion by ANZ of the express stipulations directing a customer not to overdraw and the

replacement of that wording to the effect that ANZ was providing a fee for service: see for

example, para 14 of Annexure 2. The Applicants submitted that in redrafting the contracts it did

not alter the substance of the contracts but, in the face of public and legal scrutiny and with the

prospect of losing a valuable income stream, ANZ sought to “finesse” the wording to give the

impression that it was providing services. The Applicants submitted that that conduct, and in

utilising its unilateral right to vary the contracts in aid of the disguise, ANZ acted unconscionably

because it used its power in a manner contrary to acceptable community values.

D. ANALYSIS

(1) Introduction

289 The Applicants’ contention that the entering into, and giving effect to, each of the Saving,

Card and Business Contracts contravened the various statutory prohibitions against

unconscionable conduct in the FTA and the ASIC Act is rejected.

290 Before turning to consider the particular circumstances relied upon by the Applicants, it is

necessary to understand what was not alleged and what was absent. First, there was no allegation

of dishonesty, oppression or abuse of a commercially powerful position and none existed.

Second, there was no allegation that ANZ failed to disclose the Exception Fee Provisions to the

Applicants at the time that they entered into the Saving, Card and Business contracts or when the

Exception Fees were altered. The Exception Fees were disclosed: see [99] above. Third, there

was no allegation that the Applicants were unable to understand the Exception Fee Provisions.

Fourth, there was no allegation that the Applicants were compelled to enter into the Saving, Card

and Business Contracts with ANZ or that ANZ placed financial or other pressure on them to enter

into those contracts. Fifth, there was no allegation that the Applicants were under compulsion to

engage in the overdraw transactions. It was wholly a matter of choice for the Applicants whether

they chose to do so. ANZ provided a facility to “switch off” the ability to overdraw their account

and thereby avoid the incurring of Exception Fees associated with overdraw transactions:

see [100] above. If customers wished to borrow further funds from ANZ, ANZ offered various

alternative loan products. While customers would incur fees in connection with those borrowings,

83

those fees had a different structure than the exception fees, thereby offering choice to the

customers. Other banks offered similar products subject to different fee structures. Sixth, each of

the Saving, Card and Business contracts were terminable at will by the Applicants. If the

Applicants were dissatisfied with the quantum of the Exception Fees at any time, they were able

to terminate the contract and seek alternative services.

291 It is against that background that the specific matters relied upon by the Applicants are

considered.

(2) ANZ had all or most of the bargaining power in its relationship with the Applicants

292 ANZ did not negotiate the Exception Fee Provisions with the Applicants. That admitted

fact alone does not suggest or establish unconscionability. Many consumer products are offered

by suppliers without the opportunity for customers to engage in individual negotiations. That is a

matter of business practicality and efficiency: see [95]-[98] above.

293 It was not suggested that ANZ was in a position of market dominance or that the

Applicants had little choice but to acquire banking services from ANZ. The exception fees

charged by ANZ and the other banks varied. The Applicants acquired banking services from

other financial institutions and had held, and continue to hold, accounts with several of ANZ’s

competitors. Indeed, at each time an overdrawing transaction occurred which led to the charging

of an Exception Fee, Mr Paciocco (and SDG) had sufficient credit available under facilities held

by him, either with ANZ or with other financial institutions, to cover the amount by which that

transaction overdrew the relevant account.

(3) Exception Fees imposed by standard form contracts drafted by ANZ and other terms of those standard form contracts

294 The Exception Fees were imposed by standard form contracts: see [287] above.

That, of itself, does not indicate unconscionability: see [292] above.

295 The Applicants submitted that the Exception Fee Provisions did not take account of the

specific characteristics of the Applicants. That statement is too general. It may be accepted that a

specific Exception Fee Provision did not take account of the specific characteristics of the two

Applicants but the manner in which the overdraw provisions were managed did take account of

the specific characteristics of an Applicant: see [99]-[102] above.

296 If the corollary of the Applicants’ contention is that ANZ should not adopt a degree of

standardisation of fees and charges for customers and, further or alternatively, should develop

84

different fees for different circumstances, that contention is rejected. In assessing the statutory

unconscionability regime, the Court is entitled to take into account the fact that in the modern

world consumer products are often offered by suppliers with a degree of standardisation. That is a

matter of business practicality and efficiency: see [95]-[98] above. The fact that there is a degree

of standardisation does not, of itself, establish that the conduct was unconscionable.

297 The Applicants’ further contention that the account contracts did not give the Applicants

reciprocal rights for any failure by ANZ to meet its contractual obligations is rejected.

The contention was not pleaded, was not developed by the Applicants in argument and the

Applicants failed to consider or address the significance of the Code of Banking Practice which

formed part of each Contract: see [92] above.

(4) Contracts for essential services where termination attended by significant inconvenience

298 This contention is rejected. The contention was not pleaded, was not developed by the

Applicants in evidence or argument. Moreover, the evidence that was tendered (namely the fact

that the contracts were terminable at will by the Applicants and that the Applicants acquired

banking services from other financial institutions and had held, and continue to hold, accounts

with several of ANZ’s competitors) was arguably inconsistent with this contention.

(5) Fees more likely paid by low-income customers in financial difficulty

299 In support of this contention, the Applicants incorrectly cherry picked a sentence from the

“ANZ Exception Fee Response – Update, 10 August 2009”: see [64] of Annexure 4.

This contention is rejected.

(6) Quantum of Exception Fees out of proportion to ANZ’s loss from Exception Fee Event

300 The Exception Fees in issue are the Overdraw, Overlimit and Dishonour Fees.

301 It is neither possible nor appropriate (see [17]-[21] above) to consider the quantum of each

Exception Fee separate from the terms and inherent circumstances of the contract and the

applicable Exception Fee Events. For the reasons set out at [206]-[211], it cannot be said that the

quantum of the Exception Fees was unconscionable.

(7) Applied fee waiver inconsistently between customers

302 The Applicants contended that ANZ would, when faced with a complaint by a customer

that the fee was unfair or exorbitant, respond by waiving the fee but continue to charge the fee to

85

other customers, thereby acting inconsistently between customers. As is self-evident,

this contention is general. There was no evidence to suggest that this happened to either

Applicant.

303 In fact, to the extent that this general evidence was and is relevant, the evidence was that

ANZ staff did waive an exception fee in response to a customer request or query where it was the

first time the customer had received such a fee. Staff were also able to waive the fee when the

customer was in hardship or where the customer had overdrawn their account as a result of a

mistake or accident. Such a policy was not unconscionable; to the contrary, it enabled ANZ to

respond fairly to customers whose circumstances justified a waiver of the fee.

(8) ANZ took advantage of fact that Applicants initiated Exception Fee Events irrationally, inadvertently and unintentionally and as the result of accident, oversight or mismanagement of finances.

304 This contention is also rejected. The contention was not pleaded, was not developed by

the Applicants in argument and is contrary to the evidence. Mr Paciocco’s evidence was that it

was convenient for him to manage his ANZ accounts close to their limits and take the risk that he

would overdraw the accounts and incur an overlimit or honour fee. No less importantly, charging

of the Exception Fees is not rendered unconscionable by the Applicants’ own irrational conduct or

mismanagement especially where it is not alleged that the Applicants were unaware of the

Exception Fees or the circumstances in which they were charged. Moreover, Mr Paciocco

received letters from ANZ in respect of Exception Fees on Saving Account 156 and received

many phone calls from ANZ’s Collections Team in respect of Overlimit and Late Payment

Exception Fee Events on his Card Accounts: see Annexure 1. Despite those steps, he continued

to overdraw his accounts.

(9) ANZ uniquely placed to prevent customers inadvertently triggering most if not all exception fees.


the Applicants in argument and is contrary to the evidence. ANZ was able to prevent customers

triggering exception fees associated with overdraw transactions by preventing customers from

overdrawing their accounts. However, there is no factual basis on which to conclude that

customers would be better off if ANZ adopted that course.

306 In the case of Mr Paciocco, he gave evidence that if he initiated a transaction that

overdrew his ANZ account he would prefer ANZ to process the transaction than refuse to process

86

it. That is not surprising – he initiated each instruction which ANZ considered before authorising

the account to be overdrawn. Moreover, ANZ was not able to prevent customers inadvertently

triggering exception fees; ANZ could never know whether a customer action, whether initiating

an overdraw transaction or late payment, was intentional or inadvertent. Only customers could

prevent the inadvertent triggering of exception fees. Finally, it must be recalled that ANZ did take

steps to bring the Exception Fees to the attention of the Applicants: see [99] above.

(10) Exception Fees charged regardless whether caused by ANZ’s payment systems and thus incurred beyond the control or understanding of the customer


the Applicants in argument and is contrary to the evidence. It is not accurate to contend that

exception fees associated with overdraw transactions are caused by ANZ’s payment systems.

Overdraw transactions are initiated by customers; they constitute a request for additional

borrowings to ANZ. ANZ’s payment systems (both electronic and manual) determine whether to

allow or disallow the transaction: see [192]-[195] above. The incurring of the fees is caused by

the customer’s conduct. Put another way, without the customer’s transaction that initiates the

process, the fee could not be charged.

(11) Honour and Overlimit Fees – ANZ fully compensated by interest on overdrawn sum (which included a profit margin)

308 It was common ground that ANZ charged interest on overdrawn amounts. While it may

be relevant, it is not necessarily unconscionable for a lender to charge both fees and interest in

connection with borrowings. The Applicants do not advance any principle, far less any evidence,

by which their contention of “full compensation” can be assessed: see [165]-[168] above.

(12) December 2009 redrafting of the contracts

309 It was common ground that the December 2009 redraft did not alter the substance of the

contracts. The 2009 drafting merely made more express what was always the case: that the fees

associated with overdraw transactions were in respect of ANZ’s consideration of the customer’s

request for further borrowing: Andrews Trial at [182], [183], [187], [279], [280], [291], [306],

[307] and [328]. This contention does not assist.

87

(13) Conclusion

310 In all the circumstances, in entering into, and giving effect to, the contracts with the

Applicants (see [9]-[10] above), ANZ did not engage in unconscionable conduct in contravention

of the ASIC Act or the FTA.

PART 8: UNJUST TRANSACTIONS UNDER THE CREDIT CODES

A. INTRODUCTION

311 This section only concerns the Overlimit Fees on Card Accounts 9522 and 9629:

Exception Fees 12-13, 15, 19-22, 24-26, 29-30, 32-33, 35, 39-40, 43-44, 48 and 50. Neither the

Consumer Credit (Victoria) Code (the Code) nor the New Code applied to saving or business

accounts.

312 Mr Paciocco initially contended that by reason of the Exception Fees charged on the Card

Accounts:

1. the Card Accounts entered into prior to 1 July 2010 and which were not “carried over

instruments” were unjust transactions under s 70 of the Code; and/or

2. the Card Accounts entered into from 1 July 2010 or carried over instruments were unjust

transactions under s 76(1) of the New Code.

313 During final submissions, Mr Paciocco accepted that it was the New Code that applied and

that his claim was limited to a claim under s 76 of the New Code in relation to the Overlimit Fees

on his Card Accounts (the Exception Fees listed in [311] above).

B. APPLICABLE LAW

314 Section 76(1) of the New Code headed “Court may reopen unjust transactions” relevantly

provides:

Power to reopen unjust transactions (1) The court may, if satisfied on the application of a debtor … that, in the

circumstances relating to the relevant credit contract … at the time it was entered into or changed (whether or not by agreement), the contract … was unjust, reopen the transaction that gave rise to the contract … or change.

315 In determining whether a term of a particular credit contract is unjust, the Court must have

regard to some matters and may have regard to other matters: s 76(2) of the New Code.

88

316 Section 76(2) of the New Code relevantly provides:

In determining whether a term of a particular credit contract … is unjust in the circumstances relating to it at the time it was entered into or changed, the court is to have regard to the public interest and to all the circumstances of the case and may have regard to the following: (a) the consequences of compliance, or noncompliance, with all or any of the

provisions of the contract …; (b) the relative bargaining power of the parties; (c) whether or not, at the time the contract … was entered into or changed, its

provisions were the subject of negotiation; (d) whether or not it was reasonably practicable for the applicant to negotiate

for the alteration of, or to reject, any of the provisions of the contract … or the change;

(e) whether or not any of the provisions of the contract … impose conditions

that are unreasonably difficult to comply with, or not reasonably necessary for the protection of the legitimate interests of a party to the contract …;

(f) whether or not the debtor …, or a person who represented the debtor …,

was reasonably able to protect the interests of the debtor, … because of his or her age or physical or mental condition;

(g) the form of the contract … and the intelligibility of the language in which

it is expressed; (h) whether or not, and if so when, independent legal or other expert advice

was obtained by the debtor …; (i) the extent to which the provisions of the contract … or change and their

legal and practical effect were accurately explained to the debtor … and whether or not the debtor … understood those provisions and their effect;

(j) whether the credit provider or any other person exerted or used unfair

pressure, undue influence or unfair tactics on the debtor … and, if so, the nature and extent of that unfair pressure, undue influence or unfair tactics;

(k) whether the credit provider took measures to ensure that the debtor …

understood the nature and implications of the transaction and, if so, the adequacy of those measures;

(l) whether at the time the contract … was entered into or changed, the credit

provider knew, or could have ascertained by reasonable inquiry at the time, that the debtor could not pay in accordance with its terms or not without substantial hardship;

(m) whether the terms of the transaction or the conduct of the credit provider

is justified in the light of the risks undertaken by the credit provider;

89

… (o) the terms of other comparable transactions involving other credit

providers and, if the injustice is alleged to result from excessive interest charges, the annual percentage rate or rates payable in comparable cases;

(p) any other relevant factor.

317 “Unjust” includes unconscionable, harsh or oppressive: s 76(8) of the New Code.

“Unjust” is not however confined to that “tautological trinity”: West v AGC (Advances) Ltd

(1986) 5 NSWLR 610 at 621. The definition is not exclusive. As is self-evident, s 76(2) of the

New Code is mostly concerned with matters of procedural injustice: West at 620-621 (dealing

with identical wording under the Contracts Review Act 1980 (NSW) (the CRA). However, it is

not limited to questions of procedural injustice. As McHugh J explained in West at [620]:

a contractual provision may be unjust simply because it imposes an unreasonable burden on the claimant when it was not reasonably necessary for the protection of the legitimate interests of the party seeking to enforce the provision. … Thus a contract may be unjust under the [CRA] because its terms, consequences or effects are unjust. This is substantive injustice. Or a contract may be unjust because of the unfairness of the methods used to make it. This is procedural injustice.

318 As the statutory language of s 76 of the New Code makes clear, it is the contract or the

provisions, not the transaction, that must be unjust: West at 621E. As Kirby P stated in Baltic

Shipping Company v Dillon (“Mikhail Lermontov”) (1991) 22 NSWLR 1 at 20 (considering the

CRA):

I consider that it is a mistake to read into the language of s 9 an obligation to show that the contract was unjust because it was produced by unfair conduct or unjust conduct on the part of one of the parties to it. This is not what the section says. It addresses attention to the resulting contract itself … A contract may be “unjust” because of peculiarities inherent in the circumstances of one of the parties of which the other party was quite ignorant. It may be “unjust” although the other party has acted quite honourably and lawfully.

319 In determining whether a credit contract is unjust, a Court is not to have regard to any

injustice arising from circumstances that were not reasonably foreseeable when the contract was

entered into or changed: s 76(4) of the New Code. However, the Court must take into account the

public interest and all the circumstances of the case: s 76(1) of the New Code.

320 Different views have been expressed about the “public interest” element. In Custom

Credit Corporation Ltd v Lupi [1992] 1 VR 99 at 105 Murphy J noted that “public interest” was a

90

difficult concept but suggested that it directed attention to whether the credit provider’s conduct

offended against community standards of business morality. As Mr Paciocco submitted,

the community standards of business morality “may vary over time”: Perpetual Trustee Company

Limited v Khoshaba [2006] NSWCA 41 at [64]. In Knowles v Victorian Mortgage Investments

Ltd [2011] VSC 611 at [64] and [68], the Court considered that the public interest criteria

involved a weighing and balancing of competing considerations including the consumer

protection purpose of the Code with the need to hold parties to their bargain.

321 Determination of unjustness involves a normative evaluation of the totality of relevant

circumstances. As Allsop P (as he then was) said in Provident Capital Ltd v Papa [2013]

NSWCA 36 at [7]:

The characterisation of a contract as unjust and the sheeting home to the other contracting party of the consequences of its unjustness may be a difficult evaluative exercise. At its heart, however, is the recognition of the inadequacy of one party to protect his or her interests in the circumstances.

C. ANALYSIS

322 Mr Paciocco identified the same matters as those considered in Part 7 above with

particular emphasis on three specific matters – the gross disproportion of the fees charged, there

was in substance no service provided and the circumstances and purpose of the 2009 redraft.

Each of those particular matters was also addressed in Part 7 above: see also [206]-[211] above.

323 For the reasons set out in Part 7 at [286]-[309] above, each of Mr Paciocco’s Card

Accounts was not, in all the circumstances at the time that they were made or changed, unjust

within the meaning of s 76(1) of the New Code. The circumstances indicative of unjustness were

not present.

324 The following matters further support that conclusion:

1. Mr Paciocco did not contend that he had an inability reasonably to protect his own

interests or lacked the capacity to decide whether to enter into the Card Accounts:

cf Knezevic v Perpetual Trustees Victoria Ltd [2013] NSWCA 199 at [12].

2. Mr Paciocco did not contend that he did not understand the terms of the Card Accounts or

that ANZ did not take adequate measures to ensure that he understood the nature and

implications of the Card Accounts and their terms: May v Brahmbhatt [2013] NSWCA

309 at [41].

91

3. Mr Paciocco did not contend he was unaware of the purpose and nature of the Card

Accounts or his potential financial exposure (Radin v Commonwealth Bank of Australia

[1998] FCA 1361 at [104]). 406 or that he had an inability to meet the obligations under

the Card Accounts: Knezevic v Perpetual Trustees Victoria Ltd [2013] NSWCA 199 at

[12]. Indeed, when Mr Paciocco opened Card Account 9522, he transferred across to that

account a pre-existing indebtedness of $10,000. When Mr Paciocco opened Card Account

9629, he immediately used the account for a cash advance of $4,000: see [215] above.

4. Mr Paciocco did not contend that ANZ exerted or used unfair pressure, undue influence or

unfair tactics on Mr Paciocco to enter into the Card Accounts (May v Brahmbhatt [2013]

NSWCA 309 at [40]) or that he did not have a real or informed choice to enter into the

Card Accounts: Citicorp Australia Ltd v O’Brien (1996) 40 NSWLR 398. In fact,

Mr Paciocco was under no obligation to enter into the Card Accounts or to draw on their

credit in any amount or at any time: Godfrey v National Australia Bank (2001) NSWSC

977 at [61].

5. Mr Paciocco did not contend that there was anything unusual or exceptional in the manner

in which the Card Accounts were entered into or in their terms: May v Brahmbhatt [2013]

NSWCA 309 at [43]. On the contrary, it was common ground that similar terms were

offered by ANZ’s competitors: see [95(2)] above.

325 For those reasons, Mr Paciocco’s claim under s 76 of the New Code in relation to the

Overlimit Fees on his Card Accounts (Exception Fees 12-13, 15, 19-22, 24-26, 29-30, 32-33, 35,

39-40, 43-44, 48 and 50) is dismissed.

PART 9: UNFAIR CONTRACT TERMS

A. INTRODUCTION

326 This claim was made in relation to Saving Account 156 and the Card Accounts.

The unfair term provisions of the FTA and the ASIC Act do not apply to business contracts.

The law is not straightforward. It was amended many times. The amendments may be divided

into four phases:

1. Phase 1 – 9 October 2003 to 11 June 2009;

2. Phase 2 – 11 June 2009 to 1 July 2009;

3. Phase 3 – July 2010 to 31 December 2010; and

4. Phase 4 – 1 January 2011 to 1 July 2012.

92

327 In general terms:

1. neither s 32W of the FTA nor s 12BG of the ASIC Act has ever applied to Saving Account

156;

2. Part 2B of the FTA as in force during Phase 2 applied to Card Account 9629 from the date

the account was opened (on or about 12 July 2009) and to the Exception Fee Provisions of

Card Account 9522 from December 2009 until the repeal of the FTA on 1 July 2012; and

3. s 12BG of the ASIC Act has never applied to either Card Account.

I will deal with each phase.

(1) Phase 1 – 9 October 2003 to 11 June 2009

328 Phase 1 is not relevant to these proceedings. Part 2B of the FTA was inserted by s 12 of

the Fair Trading (Amendment) Act 2003 (Vic). From its commencement on 9 October 2003 until

its amendment on 11 June 2009, Part 2B of the FTA applied to saving accounts entered into from

9 October 2003. Accordingly, during Phase 1, Part 2B of the FTA did not apply to Mr Paciocco’s

Saving Account 156 (it was entered into on 10 June 1997) or his Card Accounts (as they were

governed by the Credit Code).

329 Although the applicable law in Phase 1 is not relevant, it is necessary to consider its

operation because it forms the foundation for the amendments in Phases 2, 3 and 4.

330 A term was unfair for the purpose of Pt 2B of the FTA during Phase 1 “if contrary to the

requirements of good faith and in all the circumstances, it causes a significant imbalance in the

parties’ rights and obligations arising under the contract to the detriment of the consumer”

(emphasis added): s 32W of the FTA. A non-exhaustive list of factors that may be taken into

account by the court were set out in s 32X of the FTA.

331 In Jetstar Airways Pty Ltd v Free [2008] VSC 539, Cavanough J made the following

observations about Pt 2B of the FTA:

1. There are three elements to this test – a significant imbalance must have been caused, the

causing of it must be able to be characterised as contrary to the requirements of good faith,

and there must be detriment to the consumer: at [102], [106] and [107];

2. A term will not be contrary to the requirements of good faith unless, inter alia,

the inclusion of the term involves departure from good standards of commercial morality

or practice: at [121];

93

3. Individual negotiation of a term is not relevant to whether the term causes a significant

imbalance, and so can only be relevant to the question whether contrariety to the

requirements of good faith has been demonstrated: at [112];

4. Regard must be had to the rights and obligations of the parties under the contract as a

whole: at [127]; and

5. The provisions are not directed to whether there is unfairness in seeking to enforce a

contractual term at a particular time; the time of the contract is the only relevant time for

assessing unfairness for the purpose of this Part: at [119].

(2) Phase 2 – 11 June 2009 to 1 July 2010

332 Part 2B of the FTA was amended by the Fair Trading and Other Acts Amendment Act

2009 (Vic) to remove the good faith element of the statutory test and to repeal the exclusion of

credit contracts.

333 From the commencement of the amendment on 11 June 2009 until its further amendment

on 1 July 2010, Pt 2B of the FTA in its amended form applied relevantly to:

1. saving accounts entered into from 9 October 2003; and

2. card accounts entered into, and provisions of card accounts that were varied, from 11 June

2009.

334 Accordingly, during Phase 2, Pt 2B did not apply to Saving Account 156. Part 2B did

apply to Card Account 9629 from the date the account was opened on or about 12 July 2009 and it

did apply to the Exception Fee Provisions of Card Account 9522 (which was opened prior to

11 June 2009) from the date of variation of those terms in December 2009.

335 In Phase 2, the words “contrary to the requirements of good faith” were removed from

s 32W: see [330] above. A term was regarded as unfair “if, in all the circumstances, it causes a

significant imbalance in the parties’ rights and obligations arising under the contract to the

detriment of the consumer”. The factors that may be taken into account by the court under s 32X

were unchanged.

(3) Phase 3 – 1 July 2010 to 31 December 2010

336 Part 2B of the FTA was further amended by the Fair Trading Amendment (Unfair

Contract Terms) Act 2010 (Vic) to enact equivalent provisions to those in Pt 2-3 of the ACL.

During Phase 3, Pt 2B of the FTA applied relevantly to card accounts entered into, and provisions

94

of those accounts that were varied, from 1 July 2010. None of Mr Paciocco’s accounts became

subject to Pt 2B of the FTA during Phase 3.

337 However, during Phase 3, Pt 2B of the FTA in force during Phase 2 continued to apply to

contracts entered into before 1 July 2010 in accordance with its terms. Accordingly, during Phase

3, Pt 2B as in force during Phase 2 continued to apply to Card Account 9629 and to the Exception

Fee Provisions of Card Account 9522: see [334] above.

338 Subdivision BA of Div 2 of Pt 2 of the ASIC Act (also replicating the provisions in Part 2-

3 of the ACL) commenced on 1 July 2010. That subdivision applied relevantly to card accounts

entered into, and provisions of those accounts that were varied, from 1 July 2010. None of

Mr Paciocco’s accounts became subject to subdiv BA of Div 2 of Pt 2 of the ASIC Act during

Phase 3.

(4) Phase 4 –- 1 January 2011 to 1 July 2012

339 Part 2B of the FTA (including s 32W) was repealed by s 17 of the Fair Trading

Amendment (Australian Consumer Law) Act 2010 (Vic) from 1 January 2011, and the FTA was

amended to enact the ACL (Victoria) (which included the unfair contract terms provisions in

Pt 2-3 of the ACL). The ACL (Victoria) applied relevantly to card accounts entered into, and

provisions of those accounts that were varied, from 1 January 2011. None of Mr Paciocco’s Card

Accounts became subject to the Phase 4 ACL (Victoria) provisions.

340 However, during Phase 4:

1. Part 2B of the FTA in force during Phase 3 continued to apply to contracts entered into

before 1 January 2011 in accordance with its terms. This did not include Saving Account

156: see [334] above;

2. Part 2B of the FTA in force during Phase 2 continued to apply to contracts entered into

before 1 January 2011 in accordance with its terms. This applied to Card Account 9629

and to the Exception Fee Provisions of Card Account 9522: see [334] above.

341 The FTA was repealed, and the provisions of the ACL were re-enacted as laws of Victoria,

by the Australian Consumer Law and Fair Trading Act 2012 (Vic) which commenced on 1 July

2012: see ss 8 and 233. From that date, the previous saving and transitional provisions under the

FTA ceased to apply. Accordingly, Pt 2B of the FTA as in force during Phase 2 ceased to apply

to the Card Accounts on 1 July 2012.

95

B. AREAS OF DISPUTE

342 There were two areas of dispute as to the operation of the provisions in relation to the

unfair contract terms provisions. The first related to the operation of Pt 2B of the FTA in relation

to Saving Account 156 and Card Account 9522. Part 2B commenced on 11 June 2009 and both

relevant accounts were opened prior to this date. ANZ contended that Pt 2B of the FTA did not

apply by reason of the fact that each the accounts were opened prior to the commencement of the

relevant provision. Mr Paciocco’s position was that the date of the opening of the account was

not determinative; it was the date of the relevant contract, which was extant at the time of the

charging of the Exception Fee.

343 The second dispute related to the operation of Subdiv BA of Div 2 of Pt 2 of the ASIC Act

in relation to Card Account 9522 and Card Account 9629. Subdivision BA commenced on 1 July

2010. ANZ’s position was that the regime did not apply by reason of the fact that the subdivision

only applied to credit contracts “entered into”, and provisions of those contracts, which were

“varied”, from 1 July 2010. In particular, ANZ contended that because Card Account 9522 was

“opened” well prior to this date and Card Account 9629, was again “opened” and relevantly

“varied” well prior to the operative date, the regime did not apply. Again, Mr Paciocco’s position

was that the extant credit contracts, which regulated the then existing rights of the parties, came

into existence (replacing the pre-existing credit contracts) post 1 July 2010. What then was the

relevant date of each contract?

344 In determining the date of each relevant contract, it was common ground that the relevant

accounts were opened on the following dates: (a) Saving Account 156 – 10 June 1997; (b) Card

Account 9522 – 16 June 2006 and Card Account 9629 – 12 July 2009. However, Mr Paciocco’s

position was that the date of opening did not end the relevant inquiry. He contended that properly

analysed each newly published PDS and Fees Documents (Saving Accounts) and Conditions of

Use and Fees Documents (Card Accounts) constituted a new contract between ANZ and the

customer.

345 In support of that contention, Mr Paciocco referred to the relevant principles as to the legal

effect of a variation: Concut Pty Ltd v Worrell (2000) 75 ALJR 312 at [19] and Commissioner of

Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520 at [22]-

[24]. The extract from Sara Lee repays careful reading. In that case, Gleeson CJ, Gaudron,

McHugh and Hayne JJ observed:

When the parties to an existing contract enter into a further contract by which they

96

vary the original contract, then, by hypothesis, they have made two contracts. For one reason or another, it may be material to determine whether the effect of the second contract is to bring an end to the first contract and replace it with the second, or whether the effect is to leave the first contract standing, subject to the alteration. For example, something may turn upon the place, or the time, or the form, of the contract, and it may therefore be necessary to decide whether the original contract subsists. … In Tallerman & Co Pty Ltd v Nathan's Merchandise (Victoria) Pty Ltd Taylor J said:

“It is firmly established by a long line of cases ... that the parties to an agreement may vary some of its terms by a subsequent agreement. They may, of course, rescind the earlier agreement altogether, and this may be done either expressly or by implication, but the determining factor must always be the intention of the parties as disclosed by the later agreement.”

That passage was cited with approval by Wilson and Dawson JJ in Dan v Barclays Australia Ltd. It accords with principle and with authority.

346 As Mr Paciocco submitted, the focus must be on the date of the creation of the relevant

contract which terms governed the bargain at the time of the Exception Fee. The date of creation

of the relevant contract was that set out in [344] above. The contractual documents relevant to

each Exception Fee are listed in Annexure 1. In relation to each suite of contractual documents,

there was no more than one contract. None of the variations to the contract rescinded the initial

contract.

347 Therefore, contrary to the contentions of Mr Paciocco, only Exception Fees 12 and 14-50

are subject to the FTA unfair contract terms regime and the ASIC Act regime is wholly

inapplicable to the Mr Paciocco’s claim.

348 Further, Mr Paciocco’s contention is in conflict with the terms of the applicable

transitional provisions. The transitional provisions expressly addressed the effect of variations to

the terms of existing contracts, and distinguished between entering into a contract and varying a

contract.

349 In Pt 2B of the FTA:

1. Section 32Y(4) of the FTA relevantly provided “sub-section (1) applies to any consumer

contract entered into on or after the commencement of section 12 of the Fair Trading

(Amendment) Act 2003”.

97

2. Clause 14(1) of Sch 3 to the FTA provided that:

Despite the amendment of this Act by section 4 of the Fair Trading and Other Acts Amendment Act 2009, Part 2B does not apply to contractual terms contained in a contract to which the Consumer Credit (Victoria) Act 1995 applies ... if the contract was entered into before the commencement of that section 4 unless a term of that contract is varied on or after that commencement, in which case Part 2B applies to that term on and from the time the variation takes effect. (Emphasis added.)

350 In Subdivision BA of Div 2 of Pt 2 of the ASIC Act, cl 8 of Sch 3 of the Trade Practices

Amendment (Australian Consumer Law) Act (No 1) 2010 (Cth) provided that:

1. Subdivision BA of Division 2 of Part 2 of the ASIC Act applies to a contract entered into on or after the commencement of this Part of this Schedule.

2. That subdivision does not apply to a contract entered into before the commencement of this Part of this Schedule. However: (a) … (b) if a term of the contract is varied on or after that commencement, and

paragraph (a) has not already applied in relation to the contract – that Subdivision applies to the term as varied, on and from the day (the variation day) on which the variation takes effect, in relation to conduct that occurs on or after the variation day.

(Emphasis added.)

351 If every variation constituted the entering into of a new contract containing the varied

terms, those parts of the transitional provisions that cater for the effect of variations would be

rendered otiose: cf Pearce and Geddes, Statutory Interpretation in Australia, 7th ed at [2.26].

Having regard to the transitional provisions as a whole, it can be concluded that the legislature did

not intend that varied contracts would constitute a contract “entered into” after the commencement

of the statutory provisions within the meaning of the applicable transitional provisions.

C. ANALYSIS

352 Mr Paciocco again identified the same matters as those considered in Part 7 above with

particular emphasis on the same three specific matters – the gross disproportion of the fees

charged, there was in substance no service provided and the circumstances and purpose of the

2009 redraft. Each of those particular matters was also addressed in Part 7: see also [206]-[211]

above.

98

353 For the same reasons as set out in Part 7 at [286]-[309] above, none of the provisions

imposing any of Exception Fees 12 and 14-50 was unfair within the meaning of the FTA.

PART 10: LIMITATION DEFENCES

354 This proceeding commenced on 14 March 2013. Mr Paciocco incurred two Exception

Fees on Card Account 9522 more than 6 years prior to the commencement of the proceeding:

a Late Payment Fee incurred on 4 September 2006 (Exception Fee 4) and a Late Payment Fee

incurred on 4 March 2007 (Exception Fee 5).

355 ANZ has raised limitation defences in respect of those penalty claims under the general

limitation statutes and in respect of some of the statutory claims under the specific statutory

provisions. Given the views formed about the inapplicability of the statutory provisions, it is

strictly unnecessary to consider the limitation defences in relation to those statutory provisions.

A. PENALTY CLAIMS

356 In respect of the claims based on the penalty cause of action, Mr Paciocco relevantly

sought declaratory relief and orders for an account, interest and ancillary relief. It was common

ground that Mr Paciocco’s Card Accounts were made in Victoria, the relevant Exception Fees

were paid in Victoria and the limitation period that governs those claims would be determined by

Victorian law.

357 Section 5 of the Limitation of Actions Act 1958 (Vic) (Limitations Act) relevantly

provides:

1. a 6 year limitation period applies to “actions founded on simple contract

(including contract implied by law) ...”: ss (1)(a);

2. an action for an account shall not be brought in respect of any matter which arose more

than 6 years before the commencement of the action: ss (1)(b); and

3. save as otherwise expressly provided an action shall not be brought to recover any arrears

of interest in respect of any sum of money whether payable in respect of a specialty,

judgment, legacy, mortgage or otherwise, or any damages in respect of such arrears, after

the expiration of 6 years after they became due”: ss (7).

358 The reference to “contract implied by law” in s 5(l)(a) includes a claim in restitution.

The expression “contract implied by law” reflects the former understanding of such restitutionary

claims as being grounded in a contract implied by law: Farmer v Arundel (1772) 96 ER 485 at

99

486; Baltic Shipping Company v Dillon (1993) 176 CLR 344 at 356-7 and Nu Line Construction

Group Pty Ltd v Fowler [2012] NSWSC 587 at [272]-[297].

359 Mr Paciocco raised three contentions as to why Exception Fees 4 and 5 were not statute

barred. First, he contended that the proper basis for relief was not restitution for money had and

received. Instead, he contended that his principal claim was for declaratory relief in relation to

Exception Fees 4 and 5 by which he claims a declaration that he is entitled “to be repaid the

Exception Fees …”, or alternatively “be repaid the amount by which the Exception Fees exceeded

ANZ’s actual damage as a result of the events giving rise to the charging of Exception Fees …”.

That contention is rejected. Mr Paciocco does seek declaratory relief but that is not the source of

the relief. The source of the relief is the legal entitlement to be repaid so much of the Late

Payment Fee paid to ANZ as exceeds the relevant cost to ANZ of the Exception Fee Event.

That legal entitlement was pleaded as, and found to be, a claim in restitution for money had and

received.

360 The second limb of Mr Paciocco’s argument concerned the application of Devaynes v

Noble (1816) 1 Mer 529 (Clayton’s case). Mr Paciocco contended that ANZ’s conduct

(the imposition of the fee) increased the debt owing by Mr Paciocco to ANZ on each Card

Account. He further contended that he acquired (at common law) a chose in action and (under the

equitable doctrine) an equity representing his right to contest the application of the debit and that

the debit did not affect the true state of the account running as between banker and customer:

Limpgrange Ltd v Bank of Credit and Commerce International SA [1986] FLR 36; National Bank

of Commerce v National Westminster Bank [1990] 2 Lloyd’s Rep 514 and Mackenzie v Albany

Finance Ltd [2003] WASC 100 at [232]. Mr Paciocco’s contention was that money was not paid

on application of the debit; money was only paid if and to the extent that Mr Paciocco made a

payment on account of the debit balances represented by the imposition of Fees 4 and 5 and that

these payments, consistent with principles in Clayton’s Case, would be appropriated to the debits

in the order in which they arose on the Card Account. In the present circumstances, given the

balances on that account, Mr Paciocco contended that payment may have been some considerable

time after the debits were made. Mr Paciocco contended that ANZ, which bore the relevant onus,

had failed to establish when the payment was made and therefore when the chose in action (or the

equitable analogue) arose.

361 ANZ submitted that Clayton’s case was inapplicable because the parties (ANZ and

Mr Paciocco) had specified how payments were to be appropriated in repayment of a debt.

100

What then do the September 2006 Conditions of Use provide? Clause 18 entitled “Application of

Payments, How payments are applied” stated:

Payments that are made to your account will be applied in the order set out below. Within each subclause below, transactions at lower interest rates are repaid before those at higher interest rates. (a) Any Promotional Plan Instalments due as shown on any statement of

account; (b) All government duties, taxes, fees and charges that appear or have not yet

appeared on a statement of account, and all other transactions that appear on any statement of account including balance transfers, cash advances, purchases, Promotional Plans (excluding any Promotional Plan on which payments are not yet due);

(c) All other transactions that have not yet appeared on your statement

including, balance transfers, cash advances, and purchases and Promotional Plans (excluding any Promotional Plans on which payments are not yet due);

(d) The outstanding balance on any Promotional Plans where payment is not

yet due.

362 What then was the order of payments? There were no Promotional Plan Instalments or

unpaid government duties and taxes on the statement of account for Card Account 9522.

Having regard to the Exception Fee Events giving rise to Exception Fee 4, the Exception Fee was

debited and paid more than six years before the proceeding was commenced and was out of time.

The position with Exception Fee 5 was different. It was debited more than six years before the

proceeding was commenced but paid within the six years preceding the date on which the

proceeding was commenced. Exception Fee 5 was not statute barred.

363 That leaves Mr Paciocco’s third argument – his reliance upon s 27 of the Limitations Act.

Mr Paciocco contended that he was entitled to rely upon the principles that extend limitation

periods in cases of mistake. He submitted that it was apparent from Mr Paciocco’s evidence that

until the proceeding was commenced in 2013, he was operating under the belief that ANZ was

entitled to charge the Exception Fees and he was obliged to pay Exception Fees 4 and 5.

364 ANZ submitted that Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581 was

authority for the proposition that s 27 of the Limitations Act does not apply in relation to mistakes

of law. Mr Paciocco contended that submission ought be rejected on the basis that Torrens Aloha

was not authority for that proposition. He submitted that Torrens Aloha addressed the question of

whether, given the findings in David Securities Pty Ltd v Commonwealth Bank of Australia (1992)

101

175 CLR 353 that the rule that moneys paid under a mistake of law were not recoverable was not

the law of Australia, that judgment in 1992 served to give rise to cause of action which had not

previously existed. Torrens Aloha determined, in the light of David Securities, that a cause of

action for moneys paid under a mistake of law accrued at the time the money was paid. It was

silent, however, on the key question of when time began to run under s 27 of the Limitations Act.

365 Section 27 of the Limitations Act acts as an exception to the usual rule that time begins to

run when a cause of action accrues. Under s 27, time does not begin to run “until the Plaintiff has

discovered … the mistake … or could with reasonable diligence have discovered it”.

ANZ contended that the reference to “mistake” was a reference to a mistake of fact, not law.

I reject that contention. At the time s 27 was enacted, mistake of law as a basis for a restitutionary

claim was not recognised at law. Accordingly, at the time that was enacted it was not intended to

extend to include a mistake of law. However, for the reasons set out in Kleinwort Benson Ltd v

Lincoln City Council [1999] 2 AC 349 at 387G-389G, 398-401 and 416-418 when construing the

equivalent English provision, I reject the contention that s 27 is limited to a mistake of fact.

ANZ’s limitation defence to the contention that Exception Fees 4 and 5 are penalties at law and

further or alternatively in equity, are rejected.

366 Counsel for Mr Paciocco accepted that until the Andrews Trial proceeding was

commenced on 22 September 2010, Mr Paciocco was operating under the belief that ANZ was

entitled to charge the Exception Fees and that he was obliged to pay Exception Fees 4 and 5.

Other than to contend that s 27 of the Limitations Act was limited to a mistake of fact

(a contention already rejected), ANZ did not contend for a different date. Accordingly, in respect

of Mr Paciocco’s claims that Exception Fees 4 and 5 are penalties at law and further or

alternatively in equity, time did not begin to run until the Andrews Trial proceeding was

commenced on 22 September 2010. These claims are not statute barred.

B. UNCONSCIONABLE CONDUCT UNDER THE ASIC ACT AND THE FTA

367 The Applicants seek compensatory orders under s 12GM of the ASIC Act and s 158 of the

FTA, and in the alternative seek orders for statutory damages under s 12GF of the ASIC Act and

s 159 of the FTA.

368 First, the claims for statutory damages under s 12GF of the ASIC Act and s 159 of the

FTA. These are subject to a limitation period of 6 years from the date on which the cause of

action accrued: s 12GF(2) of the ASIC Act and s 159(3) of the FTA That date is the date on

which loss and damage was first suffered (Wardley Australia Limited v Western Australia (1992)

102

175 CLR 514), which in this case is the date on which the relevant Exception Fee was charged.

In relation to Exception Fee 4, that date was 4 September 2006: see [111] above. There is no

discretion to extend these limitation periods: Roumanus v Orchard Holdings (NSW) Pty Ltd (in

liq) (2012) 90 ACSR 677 at [38] and Kedem v Johnson Lawyers Legal Practice Pty Ltd [2013]

FCA 432 at [82]-[83]. Accordingly, if it be relevant, Mr Paciocco’s claims for statutory damages

under s 12GF of the ASIC Act and/or s 159 of the FTA in relation to Exception Fee 4 would be

barred.

369 In relation to the Applicants’ claims for compensatory orders under s 12GM of the ASIC

Act, the Applicants did not specify whether their claim was made under subs (1) or (2) of that

section. There is a material difference between the two subsections. Subsection (1) is not of itself

subject to a limitation period, but subs (2) is subject to a 6 year limitation period: see s 12GM(5).

However, a claim under subs (1) can only be made if it is ancillary to a claim made under another

provision of Div 2 of Pt 2 of the ASIC Act: Sent v Jet Corporation of Australia Pty Ltd (1986)

160 CLR 540 at 543 and Mayne Nickless Ltd v Multigroup Distribution Services Pty Ltd (2001)

114 FCR 108 at [53] (note that s 12GM is based upon, and takes the same form as, s 87 of the

Trade Practices Act 1974 (Cth) considered in those decisions). The Applicants have not made

any other claim under Div 2 except the claim under s 12GF. If the claim under s 12GF is time

barred, then that claim cannot support a claim under s 12GM(l); that is, a claim under s 12GM(l)

takes the same limitation period as is applicable to the claim to which it is ancillary (in this case,

6 years): Sent at 546 and Mayne Nickless at [54]-[56]. Accordingly, if it be relevant,

Mr Paciocco’s claims for compensatory orders under s 12GM of the ASIC Act in relation to

Exception Fee 4 would also be barred.

370 Finally, the Applicants’ claim for compensatory orders under s 158 of the FTA.

This claim must be based on subs (3) (subs (1) is only applicable to proceedings for an offence).

Subsection (3) is in a similar form to s 12GM(1) of the ASIC Act in that it is dependent upon a

proceeding being sustained under another provision of Div 2 of Pt 11 of the FTA. The Applicants

have not made any other claim under Div 2 except the claim under s 159 of the FTA, which is

subject to the 6 year limitation period. Accordingly, if it be relevant, for the same reasons as in

respect of s 12GM of the ASIC Act, Mr Paciocco’s claims for compensatory orders under s 158 of

the FTA in relation to Exception Fee 4 would also be barred.

103

C. UNJUST TRANSACTIONS UNDER THE NEW CODE

371 Mr Paciocco sought relief under s 77 of the New Code to recover the amount of the

Exception Fee plus interest. The limitation period that governs Mr Paciocco’s claims will be

determined by Victorian law. Section 5(1)(d) of the Limitations Act relevantly provides that a

6 year limitation period applies to “actions to recover any sum recoverable by virtue of

enactment”. The claim for relief under s 77 of the New Code is an action to recover a sum

recoverable by virtue of enactment, and is therefore subject to a 6 year limitation period.

Accordingly, if it be relevant, Mr Paciocco’s claims for relief under s 77 of the New Code in

relation to Exception Fee 4 would be out of time.

D. UNFAIR TERMS UNDER THE FTA AND THE ASIC ACT

372 It was common ground that no limitation issue arises under this cause of action because

Mr Paciocco’s claims only arise in respect of the Card Accounts from mid-2009.

PART 11: REMEDIES AND ORDERS

373 The Late Payment Fees charged by ANZ on the Card Account 9522 and Card Account

9629, being Exception Fees 4-11, 14, 16-18, 23, 27, 28, 31, 34, 36-38, 41, 42, 45-47 and 49

constituted a penalty at common law and a penalty in equity. The liability to pay the late payment

fee was payable on breach and further and alternatively, was collateral (or accessory) to a primary

stipulation (to make a payment by a particular date) in favour of ANZ. That collateral stipulation,

upon failure of the primary stipulation, imposed upon the customer an additional detriment in the

nature of a security for, and in terrorem of, the satisfaction of the primary stipulation which was

extravagant, exorbitant and unconscionable.

374 The Honour, Dishonour, Non-Payment and Overlimit Fees charged by ANZ were of a

different character. None of them constituted a penalty at common law or a penalty in equity.

The liability to pay each of those Exception Fees was not collateral (or accessory) to a primary

stipulation in favour of ANZ. The liability to pay each arose as a result of, and in exchange for,

something more than and different from what had been agreed in the primary stipulation.

They were not penal in nature.

375 Further, none of the Exception Fee Provisions that entitled ANZ to charge the Honour,

Dishonour, Non-Payment or Overlimit Fees contravened any of the other statutory provisions

earlier identified.

104

376 First, it is appropriate to declare that each Late Payment Fee charged by ANZ on Card

Account 9522 and Card Account 9629, being Exception Fees 4-11, 14, 16-18, 23, 27, 28, 31, 34,

36-38, 41, 42, 45-47 and 49, constituted a penalty at common law and a penalty in equity.

Second, it is appropriate to declare that Mr Paciocco is entitled to so much of the Late Payment

Fee paid to ANZ which exceeds the relevant amount specified in the final column of Annexure 3

entitled “Finding – Loss and Damage”. The resulting amount is the amount by which the

Exception Fee exceeded the costs of ANZ by reason of the Exception Fee Event.

377 However, by reason of the nature of the Card Accounts, the question of interest charged

by, and paid to, ANZ and the question of pre-judgment interest is not straightforward. As will be

self-evident, the calculation for each Exception Fee will necessarily be different. For those

reasons, I will direct the taking of all necessary accounts and enquiries to determine:

1. The amount by which each Late Payment Fee paid to ANZ exceeds the relevant amount

specified in the final column of Annexure 3 entitled “Court – Loss and Damage”;

2. The amount of interest charged by, and paid to, ANZ in respect of the amount determined

in accordance with subparagraph 1 above; and

3. The amount of interest to be allowed to Mr Paciocco at the rate of interest specified in

Practice Note CM 16 on the sums referred to in subparagraphs 1 and 2 above from the

times at which Mr Paciocco paid ANZ each Late Payment Fee or the amount of interest on

the amount determined in accordance with subparagraph 1 above.

378 The Non-Payment Fees charged by ANZ on Saving Account 156, being Exception Fees 2

and 3, were different – they were charged in breach of contract. ANZ admitted that the applicable

contractual arrangements between ANZ and Mr Paciocco in relation to Saving Account 156 did

not permit ANZ to charge each of those Non-Payment Fees: see [230]-[233] above. What then is

the appropriate relief in relation to those Exception Fees? Mr Paciocco is entitled to damages for

breach of contract in the sum of the amount of Exception Fee 2 and Exception Fee 3 from the date

of the charging of each Exception Fee together with interest. As will be apparent, the interest

calculation may not be straightforward. The parties will need to address this issue. By agreement,

the question of costs was to be the subject of a further hearing. That hearing may now be

unnecessary.

379 The parties are directed to confer and bring in agreed orders and directions to give effect to

these reasons for judgment by 4:00pm on 12 February 2014. If the orders and directions cannot

be agreed, then the parties are to file a joint document which identifies the areas of agreement,

106

ANNEXURE 1 – EXCEPTION FEE ANALYSIS

Terms defined in the Reasons for Decision have been adopted in this Annexure

No DATE OF

EXCEPTION FEE

ACCOUNT EXCEPTION FEE TYPE

EXCEPTION FEE $ CONTRACTS EXTRACT OF SPECIFIC

EXCEPTION FEE PROVISION TRANSACTION(S) / EVENT(S) SHADOW LIMITS

Mr Paciocco – Saving Exception Fees

1. 15-Sep-08

Saving Account 156

Saving Honour $35 Signature card regarding the opening of Saving Account 156 dated 10 June 1997

August 2008 Terms and Conditions

August 2008 Fees and Charges Booklet

August 2008 Terms and Conditions:

an Honour Fee may be charged for ANZ agreeing to honour the transaction which resulted in the overdrawn amount (refer to ‘ANZ Personal Banking Account Fees and Charges’ booklet for details);

August 2008 Fees and Charges Booklet:

Honour Fee

Payable on each occasion that ANZ honours a drawing where sufficient cleared funds are not available in the account or when the credit limit on your account is exceeded. $35

The Honour Fee is payable on the date of the excess and drawings include those made at a branch, by cheque, or electronic banking. Electronic banking includes Internet, Phone, EFTPOS, Periodical Payments, Direct Debits and ATMs.

At the commencement of 12 September 2008, no overdraft facility had been agreed for the account, however the Online Excess Shadow Limit applicable to an ATM withdrawal on the account was $200. On 15 September 2008: • the opening balance of the account was $46.99; • an ATM withdrawal valued at AUD79.43

(FJD100) initiated by Mr Paciocco at 7.24pm on 12 September 2008 at the Sheraton Royal in Nadi, Fiji was automatically authorised by ANZ’s Core Transaction Management System (CTM) because its processing would not bring the account beyond its shadow limit, and posted to the account, leading to a debit balance of $32.44;

• an ATM withdrawal valued at AUD156.52 (FJD200) initiated by Mr Paciocco at 4.24pm on 13 September, also in Fiji, was automatically authorised by CTM because its processing would not bring the account beyond its shadow limit, and posted to the account, leading to a debit balance of $188.96;

• a ‘Cirrus ATM Transaction Fee’ of $10 was posted to the account, leading to a debit balance of $198.96;

• an Honour Fee of $35, being Exception Fee 1, was charged, leading to a final debit balance of $233.96;

• ANZ sent a standard form letter to Mr Paciocco advising him that he had incurred an honour fee, and outlining ways in which he might avoid incurring fees in the future.

On 18 September 2008, $3,000 was deposited into the account, resulting in a credit balance of $2,766.04.

HONOURED WITHIN SHADOW

The overdrawings were within the shadow limit:

• ATM withdrawal leading to debit balance of 32.44

• ATM withdrawal leading to debit balance of 188.96

Shadow limit – Online Excess Shadow Limit: $200.

107

No DATE OF

EXCEPTION FEE




2 26-Sep-08 Saving Account 156

Non-Payment $35 See Exception Fee 1. August 2008 Terms and Conditions:

A Periodical Payment Non-Payment Fee is charged if you have authorised a Periodical Payment that is not made because there are insufficient cleared funds in your account


Periodical Payments

…

Non-payment fee $35

As at the commencement of 22 September 2008, Savings Account 156 had a credit balance of $2,766.04. On 22 September 2008, pursuant to a periodical payment arrangement established by Mr Paciocco, ANZ’s Direct Loan Payment (DLP) system received an automated, periodical instruction to pay $2,997.32 from Savings Account 156 to an ANZ loan account in Mr Paciocco’s name. Because neither the DLP system nor the CTM (which is not thereby engaged) considers shadow limits when determining whether to process or decline such payments, the instruction was rejected. In such circumstances, ANZ’s DLP system is designed automatically to send further instructions for payment on each of the three days after the scheduled payment date. If sufficient available funds are in the account on any one of these subsequent days, the payment is processed. Accordingly, three further payment instructions (each for $2,997.32) were automatically sent on 23, 24 and 25 September 2008. On each occasion, there were insufficient funds to process the payment. As a consequence of the account lacking available funds to process the final payment instruction sent on 25 September 2008, a ‘Periodical Payment Non-Payment Fee’ (Fee 2) was charged to Savings Account 156 on 26 September 2008, with an ‘effective date’ of the previous day. On 1 October 2008, $300 was deposited into the account, resulting in a credit balance of $3,031.04. On the same day, a payment of $2,997.32 was successfully made from the account, resulting in a credit balance of $33.72.

SHADOW NOT CONSIDERED

The transaction was made pursuant to an automated arrangement to periodically make a payment to an ANZ loan account. ANZ’s systems do not consider shadow limits in determining whether there are sufficient funds in an account to process such a payment.

The shadow limit was not a factor in the declining of the transaction.

108

No DATE OF

EXCEPTION FEE




3 27-Jan-09 Saving Account 156

Non-Payment $35 See Exception Fee 1. See Exception Fee 2 At the commencement of 20 January 2009, Savings Account 156 had a credit balance of $2,032.50.

On 20 January 2009, pursuant to a periodical payment arrangement established by Mr Paciocco, ANZ’s Direct Loan Payment system received an automated, periodical instruction to pay $3,000 from Savings Account 156 to an ANZ loan account in Mr Paciocco’s name. The instruction was rejected, pursuant to the operation of the relevant payment systems as set out in respect of Fee 2.

Three further payment instructions (each for $3,000) were automatically sent on 21, 22 and 23 January 2009. On each occasion, there were insufficient funds to process the payment.

As a consequence of the account lacking available funds to process the final payment instruction sent on 23 January 2009, a ‘Periodical Payment Non-Payment Fee’ (being Fee 3) was charged to Savings Account 156 on 27 January 2009, with an ‘effective date’ of 23 January 2009.

On 11 February 2009, $3000 was deposited into the account, resulting in a credit balance of $3,995.50.


The transaction was made pursuant to an automated arrangement to periodically make a payment to an ANZ loan account. ANZ’s systems do not consider shadow limits in determining whether there are sufficient funds in an account to process such a payment.

The shadow limit was not a factor in the declining of the transaction.

109

No DATE OF

EXCEPTION FEE




Mr Paciocco – Card Exception Fees

4 04-Sep-06 Card Account 9522

Late Payment $35 Letter of Offer dated 16 June 2006

August 2006 Fees and Charges Booklet

September 2006 Conditions of Use

Letter of Offer dated 16 June 2006:

Credit Fees and Charges

…

Late Payment Fee: A fee of $35 will be charged to your credit card account if the “Monthly Payment” plus any “Amount Due Immediately” shown on the statement of account is not paid within 28 days of the end of the “Statement Period” shown on that statement.


Late Payment Fee $35

Charged to ANZ Low Rate MasterCard … if the “Monthly Payment” plus any “Amount Due Immediately” shown on the statement of account is not paid within 28 days of the end of the “Statement Period” shown on that statement.

The account statement dated 6 August 2006 had a closing balance of $8,201.75 (Dr), and required a ‘Monthly Payment’ of $163 by the ‘Due Date’ of 31 August 2006. No such payment was made. As a result, Fee 4 was charged on 4 September 2006.

On 15 September 2006, a member of ANZ’s Collections Team made an outbound call to Mr Paciocco, during which Mr Paciocco promised to pay $163 that same day, and $165 on 29 September 2006, and the operator told Mr Paciocco that his account might be closed if payment was not made, advised him of his next monthly payment and advised him to call back if he had any problems.

The next payment that was made was a payment of $500 on 18 September 2006.

Not applicable.

110

No DATE OF

EXCEPTION FEE




5 04-Mar-07 Card Account 9522


‘ANZ Personal Banking Account Fees and Charges’ dated March 2007

September 2006 Conditions of Use

See Exception Fee 4. The account statement dated 4 February 2007 had a closing balance of $6,132.94 (Dr), and required a ‘Minimum Monthly Payment’ of $122 by the ‘Due Date’ of 1 March 2007. No such payment was made. As a result, the fee was charged on 4 March 2007. The next payment that was made was a payment of $500 on 27 March 2007.

On 15 March 2007, a member of ANZ’s Collections Team made an outbound call to Mr Paciocco, during which Mr Paciocco promised to pay $122 by 23 March, and Mr Paciocco was advised of ‘Imminent Closure’, of ‘Next Monthly Payment’ and to ‘Call Back if Problems’.

Not applicable.

6 05-Aug-07 Card Account 9522

Late Payment $35 See Exception Fee 5 See Exception Fee 4. The account statement dated 4 July 2007 had a closing balance of $4,809.67 (Dr), and required a ‘Minimum Monthly Payment’ of $96 by the ‘Due Date’ of 30 July 2007. No such payment was made. As a result, the fee was charged on 5 August 2007. The next payment that was made was a payment of $500 on 15 August 2007.

Not applicable.

7 04-Nov-07 Card Account 9522



‘ANZ Credit Cards Conditions of Use’ dated November 2007

See Exception Fee 4. The account statement dated 4 October 2007 had a closing balance of $5,860.84 (Dr), and required a ‘Minimum Monthly Payment’ of $117 by the ‘Due Date’ of 29 October 2007. No such payment was made. As a result, the fee was charged on 4 November 2007. The next payment that was made was a payment of $500 on 23 November 2007.

Not applicable.

111

No DATE OF

EXCEPTION FEE




8 06-Apr-08 Card Account 9522


‘ANZ Personal Banking Account Fees and Charges’ dated February 2008

‘ANZ Credit Cards Conditions of Use’ dated March 2008

See Exception Fee 4. The account statement dated 4 March 2008 had a closing balance of $8,393.78 (Dr), and required a ‘Minimum Monthly Payment’ of $167 by the ‘Due Date’ of 31 March 2008. No such payment was made. As a result, the fee was charged on 6 April 2008. The next payment that was made was a payment of $500 on 9 April 2008.

Not applicable.

9 06-Jul-08 Card Account 9522

Late Payment $35 See Exception Fee 8 See Exception Fee 4. The account statement dated 4 June 2008 had a closing balance of $10,199.27 (Dr), and required a ‘Minimum Monthly Payment’ of $203 by the ‘Due Date’ of 30 June 2008. No such payment was made. As a result, the fee was charged on 6 July 2008.

On 14 July 2008, a member of ANZ’s Collections Team made an outbound call to Mr Paciocco, during which Mr Paciocco promised to pay $203 by 19 July. A separate automated phone call was made that same day, informing Mr Paciocco by pre-recorded message that he had a payment due. Mr Paciocco then selected an automated option indicating that he would make a payment within the next five days.

On 26 July 2008, a member of ANZ’s Collections Team made an outbound call to Mr Paciocco, during which Mr Paciocco promised to pay $500 on 28 July and was advised to ‘Call Back if Problems’, of ‘Next Monthly Payment’ and of ‘Imminent Suspension’. The operator noted that Mr Paciocco ‘had significant connections with the bank in other accounts’.

On 31 July 2008, a member of ANZ’s Collections Team made an outbound call to Mr Paciocco, during which Mr Paciocco advised that he had made payment as promised at a branch and ‘had handed a cheque to the manager and saw it get processed’. Mr Paciocco was advised of ‘Next Monthly Payment’, to ‘Call Back if Problems’, ‘Not To Use Card’ and of ‘Imminent Suspension’ and made a further promise to pay $203 by 4 August.

Not applicable.

112

No DATE OF

EXCEPTION FEE




On 6 August 2008, Paula from the ANZ Lower Templestowe branch called to say that Mr Paciocco had deposited a cheque at the branch which had gone missing, or that Mr Paciocco had told her that such an event had occurred.

Paula was advised that ANZ could not stop outbound collections calls to Mr Paciocco and that the account would be closed if $426 was not paid to the account that day.

That same day, as a result of a call from an undisclosed branch, a member of ANZ Collections Team recorded a note on file that Mr Paciocco should not be contacted by Collections until 13 August.

The next payment that was made was a payment of $426 on 6 August 2008.

113

No DATE OF

EXCEPTION FEE





Late Payment $35 See Exception Fee 8 See Exception Fee 4. The account statement dated 6 July 2008 had a closing balance of $11,220.91 (Dr), and required a ‘Minimum Monthly Payment’ of $223 by the ‘Due Date’ of 31 July 2008, plus an ‘Overdue/Overlimit’ amount due ‘Immediately’ of $203 (being the unpaid ‘Minimum Monthly Payment’ from the previous month).

No such payment was made. As a result, Exception Fee 10 was charged on 4 August 2008.

The next payment that was made was a payment of $426 on 6 August 2008.

Not applicable.

11 04-Feb-09 Card Account 9522


‘ANZ Personal Banking Account Fees and Charges’ dated February 2008

‘ANZ Credit Cards Conditions of Use’ dated September 2008

See Exception Fee 4. The account statement dated 4 January 2009 had a closing balance of $8,998.26 (Dr), and required a ‘Minimum Monthly Payment’ of $179 by the ‘Due Date’ of 29 January 2009.

No such payment was made. As a result, Fee 11 was charged on 4 February 2009.

The next payment that was made was a payment of $1,000 on 11 February 2009.

On 10 February 2009, a member of ANZ’s Collections Team made an outbound call to Mr Paciocco, during which Mr Paciocco promised to pay $1000 by cheque as well as a further payment of $179, both on 13 February, and was advised of ‘Next Monthly Payment’, ‘Not To Use Card’, of ‘Imminent Suspension’ and to ‘Call Back If Problems’. The operator noted that Mr Paciocco ‘had significant connections with ANZ in other accounts.’

Not Applicable.

114

No DATE OF

EXCEPTION FEE





Overlimit $35 Letter of Offer dated 24 July 2009

July 2009 Fees and Charges Booklet

July 2009 Conditions of Use

Letter of Offer dated 24 July 2009:



July 2009 Fees and Charges Booklet:

Overlimit Fee $35

Charged at the end of the “Statement Period” shown on the statement of account if the balance of the account exceeds the “Credit Limit” during that statement period…


At the commencement of 28 July 2009 the opening balance of Card Account 9629 was $0 and the credit limit on the account was $4,000. The shadow limit on the account at that time was $120.

On 28 July 2009:

(a) Mr Paciocco obtained a cash advance of $4,000 which was debited to the account, resulting in a debit balance of $4,000;

(b) subsequently, a cash advance fee of $80 was also debited to the account, resulting in a debit balance of $4,080.

On 12 August 2009, and as a consequence of the debiting of the cash advance fee to the account, an Overlimit Fee of $35 – (Exception Fee 12) was charged to the account.

The next payment that was made was a payment of $4,300 on 4 September 2009, which brought the account back within its credit limit.

ANZ’s systems automatically waived or reversed Overlimit Fees on Card Accounts if the overlimit amount was within $36.


The overdrawing was within the shadow limit - posting by ANZ of cash advance fee, leading to debit balance of $4,080

Shadow limit: $120 in excess of $4,000 credit limit

115

No DATE OF

EXCEPTION FEE





Overlimit $35 Letter of Offer dated 16 June 2006

July 2009 Conditions of Use

July 2009 Fees and Charges Booklet

Letter of Offer dated 16 June 2006:



July 2009 Fees and Charges Booklet:

“Overlimit Fee $35

Charged at the end of the “Statement Period” shown on the statement of account if the balance of the account exceeds the “Credit Limit” during that statement period…


At the commencement of 4 August 2009 the opening balance of Card Account 9522 was $14,878.33, the credit limit on the account was $15,000 and the shadow limit was $1,500. On 4 August 2009:

(a) a recurring direct debit of $245.54 in favour of ‘Norwich Union Life Melbourne’ was initiated (processed on 5 August 2009), resulting in a debit balance of $15,123.87;

(b) a recurring direct debit of $612.02 in favour of ‘Norwich Union Life Melbourne’ was initiated (processed on 5 August 2009), resulting in a debit balance of $15,735.89;

On 11 August 2009 (and processed on 12 August 2009) Mr Paciocco initiated an EFTPOS debit transaction of $143.95 in favour of ‘Medibank NSW Contribt Melbourne’, resulting in a debit balance of $15,879.84. On 6 September 2009, as a consequence of these three transactions which each overdrew the account within its shadow limit, an Overlimit Fee in the amount of $35 (Exception Fee 13) was charged to the account. Whilst the first two transactions were recurring direct debits on a MasterCard they were processed as EFTPOS transactions and authorised by CTM. The third transaction was authorised by CTM. ANZ’s systems automatically waived or reversed Overlimit Fees on Card Accounts if the overlimit amount was within $36.

The next payment that was made was a payment of $1,000 made on 12 August 2009, which brought the account back within its credit limit.



• recurring direct debit EFTPOS transaction, leading to debit balance of $15,123.87

• recurring direct debit EFTPOS transaction, leading to debit balance of $15,735.89

• EFTPOS transaction, leading to a debit balance of $15,879.89

Shadow limit: $1,500 in excess of $15,000 credit limit.

116

No DATE OF

EXCEPTION FEE




14 12-Jan-10 Card Account 9629

Late Payment $20 Letter of Offer dated 24 July 2009

December 2009 Conditions of Use

December 2009 Fees and Charges Booklet

December 2009 Fees and Charges Booklet:

Late Payment Fee $20

Charged to your credit card account if the “Minimum Monthly Payment” plus any amount “Payable Immediately” shown on the statement of account is not paid by the “Due Date” shown on that statement.

The account statement dated 13 December 2009 had a closing balance of $2,145.60 (Dr), and required a ‘Minimum Monthly Payment’ of $43 by the ‘Due Date’ of 7 January 2010.

No such payment was made. As a result, the fee was charged on 12 January 2010.

On 3 February 2010 at 12:23pm, a member of ANZ’s Collections Team made an outbound call to Mr Paciocco lasting 6.40 minutes, during which Mr Paciocco promised to pay $2000 that same day, and was advised of ‘Next Monthly Payment’, ‘Not To Use Card’ and to ‘Call Back If Problems’. The notes of the call record that the account was assigned to a class designating Mr Paciocco as a ‘Very Important Person’, i.e. a customer ‘with significant lending with ANZ’.

The next payment that was made was a payment of $2,000 on 3 February 2010.

Not Applicable.

117

No DATE OF

EXCEPTION FEE




15 12-May-10 Card Account 9629



March 2010 Conditions of Use

March 2010 Conditions of Use:

(2) The Credit Limit

(c) When a debit is initiated which, if processed, would result in the outstanding balance temporarily exceeding your credit limit, you make a request for an Informal Overlimit amount. ANZ will consider your request for an Informal Overlimit amount and, if both the debit and the account holder satisfy ANZ’s credit criteria for Informal Overlimit amounts, ANZ will allow the debit to be processed as an Informal Overlimit amount, on the following terms:

…

• an Overlimit Fee will be charged (refer to the Letter of Offer for details);

• the Informal Overlimit amount, any interest on that amount and any Overlimit Fees will be debited to your credit card account …

December 2009 Fees and Charges Booklet:

Overlimit Fee $20

Charged to your credit card account at the end of the “Statement Period” shown on the statement of account if we agree to provide an Informal Overlimit amount during that statement period. The Overlimit Fee is charged at a maximum of once per

At the commencement of 7 May 2010, the balance of Card Account 9629 was $3,192.53, the credit limit on the account was $4,000 and the shadow limit on the account was $400.

That same day a debit transaction of $600 in favour of merchant ‘O Henry Menswear PL Balwyn’ was initiated and processed, bringing the balance of the account to $3,792.53.

Two further debit transactions were initiated that same day and subsequently processed on 11 May 2010:

(a) $32.47 in favour of merchant ‘AA Templestowe 5361 Templestowe’, bringing the balance of the account to $3,825;

(b) $248.22 in favour of merchant ‘Aldi Stores Eltham’, bringing the balance of the account to $4,073.22.

Five more transactions were initiated which further overdrew the account:

(a) on 8 May 2010 (processed on 11 May 2010), $40 in favour of merchant ‘United Bulleen Bulleen’, bringing the balance of the account to $4,113.22;

(b) on 8 May 2010 (processed on 11 May 2010), $81.65 in favour of merchant ‘Tantra Indian Rest Doncaster Eas’, bringing the balance of the account to $4,194.87;

(c) on 9 May 2010 (processed on 11 May 2010), $40 in favour of merchant ‘United Bulleen Bulleen’, bringing the balance of the account to $4,234.87;

(d) on 10 May 2010 (processed on 11 May 2010), $97.48 in favour of merchant ‘Clear Telecoms Forest Lodge’, bringing the balance of the account to $4,332.35;


The overdrawings were within the shadow limit - 6 transactions, leading to final debit balance of $4,355.80.

Shadow limit: $400 in excess of $4,000 credit limit.

118

No DATE OF

EXCEPTION FEE




statement period. (e) on 10 May 2010 (processed on 12 May 2010), $22.72 in favour of merchant ‘Aldi Stores Doncaster Eas’, bringing the balance of the account to $4,355.07.

As a result of all but the first of the transactions set out above, on 12 May 2010 an Overlimit Fee of $20 (Exception Fee 15) was charged to the account which itself further overdrew the account, bringing the balance of the account to $4,375.07.

On the same day, a payment of $4,000 was made to the account, thereby reducing the closing balance of the account to $375.07 (Dr), which brought the account back within its credit limit.

All the above transactions which caused the account to exceed its credit limit were processed as EFTPOS transactions and authorised by CTM.


16 13-Jun-10 Card Account 9629



‘ANZ Credit Cards Conditions of Use’ dated June 2010

See Exception Fee 14. The account statement dated 12 May 2010 had a closing balance of $375.07 (Dr), and required a ‘Minimum Monthly Payment’ of $10 by the ‘Due Date’ of 7 June 2010.

No such payment was made. As a result, the fee was charged on 13 June 2010.

The next payment that was made was a payment of $3,770 on 17 June 2010.

Not Applicable.

119

No DATE OF

EXCEPTION FEE






‘ANZ Credit Cards Conditions of Use’ dated April 2011

‘ANZ Personal Banking Account Fees and Charges’ dated May 2011

See Fee 14. The account statement dated 12 May 2011 had a closing balance of $268.38 (Dr), and required a ‘Minimum Monthly Payment’ of $10 by the ‘Due Date’ of 6 June 2011.


The next payment that was made was a payment of $500 on 20 June 2011.

Not Applicable.

18 12-Oct-11 Card Account 9629

Late Payment $20 See Exception Fee 17.

See Fee 14. The account statement dated 12 September 2011 had a closing balance of $723.78 (Dr), and required a ‘Minimum Monthly Payment’ of $15 by the ‘Due Date’ of 7 October 2011.

No such payment was made. As a result, the fee was charged on 12 October 2011.

The next payment that was made was a payment of $500 on 4 November 2011.

Not Applicable.

120

No DATE OF

EXCEPTION FEE




19 06-Nov-11 Card Account 9522



November 2011 Fees and Charges Booklet

See Exception Fee 15. The credit limit on the account was $18,000. As at 5 October 2011 (being the first day of the statement period) the opening balance of the account was $15,201.99 (Dr). On 22 October 2011 the opening balance of the account was $17,687.56 (Dr). A payment of $428.25 that day (but processed on 24 October 2011) to ‘L&H Bulleen’ caused the balance to increase to $18,115.81 (Dr). On 25 October 2011 a payment of $500 caused the balance to reduce to $17,615.81 (Dr), but then three further payments ($437.73 to ‘Swan Plumbing’, $22.20 to ‘Bunnings’ and $41.86 to ‘M2 Clear Pty Ltd’ caused the balance to again increase above the credit limit, to $18,117.60. The closing balance on 6 November 2011 (including fees and charges applied on that date, consisting of the Overlimit Fee of $20 (Exception Fee 19), interest charges of $214.96 and a payment of $144.99 to ‘ANZ Creditcover Plus’) was $18,497.55 (Dr). On 7 November 2011, an employee of Baycorp, a service provider to ANZ, made an outbound call to Mr Paciocco, during which Mr Paciocco promised to pay $497.55 by 11 November, and was advised ‘Not to Use Card’, to ‘Call Back If Problems’ and of ‘Next Monthly Payment’. A number of transactions were subsequently posted to the account. On 25 November 2011 a deposit of $1,500 was made into the account, which brought the account back within its credit limit. All of the above transactions were processed as EFTPOS transactions and authorised by CTM. ANZ’s systems automatically waived or reversed Overlimit Fees on Card Accounts if the overlimit amount was within $21.


The overdrawings were within the shadow limit - 7 transactions, leading to final debit balance of $18,497.55

Shadow limit: $2,700 in excess of $18,000 credit limit

121

No DATE OF

EXCEPTION FEE







‘ANZ Credit Cards Conditions of Use’ dated December 2011

See Exception Fee 15. The credit limit on the account was $18,000. Two charges were applied to the account on 4 December 2011 (the last day of the prior statement period) which had sent the account over its credit limit: • $192.96 interest charged on purchases, leading

to a debit balance of $18,163.57. • $143.49 ANZ Creditcover Plus, leading to a

debit balance of $18,307.06. As at 5 December 2011 (being the first day of the statement period) the opening balance of the account was $18,307.06 (Dr). The following transactions were conducted on the account: • $533.93 recurring direct debit to MLC Limited

Melbourne on 5 December 2011 (processed 6 December), leading to a debit balance of $18,840.99;

• $329.73 recurring direct debit to MLC Limited Melbourne on 5 December 2011 (processed 6 December), leading to a debit balance of $19,170.72;

• $821.64 recurring direct debit to MLC Limited Melbourne on 5 December 2011 (processed 6 December), leading to a debit balance of $19,992.36;

• $159.35 to Medibank NSW Contribt Melbourne on 12 December 2011 (processed 12 December), leading to a debit balance of $20,151.71.

A payment of $2,000 (on 28 December 2011) caused the balance to reduce below the credit limit, where it remained until the end of the statement period. The closing balance on 4 January 2012 (including fees and charges) was $17,521.52 (Dr).

All of the above debit transactions, apart from the ANZ fees, were processed as EFTPOS transactions and authorised by CTM.




122

No DATE OF

EXCEPTION FEE





123

No DATE OF

EXCEPTION FEE





Overlimit $20 See Exception Fee 20.

See Exception Fee 15. The credit limit on the account was $18,000. As at 5 January 2012 (being the first day of the statement period) the opening balance of the account was $17,521.52 (Dr). The following transactions were posted to the account on 5 January but initiated on 4 January (opening balance: $17,521.52): • $533.93 recurring direct debit to MLC Limited

Melbourne, leading to a debit balance of $18,055.45;

• $329.73 recurring direct debit to MLC Limited Melbourne, leading to a debit balance of $18,385.18;

• $821.64 recurring direct debit to MLC Limited Melbourne, leading to a debit balance of $19,206.82;

On 11 January 2012, a payment of $159.35 to Medibank NSW Contribt Melbourne was initiated (processed 12 January), leading to a debit balance of $19,366.17. Despite a payment of $1,000 on 12 January 2012, the balance of the account remained above the credit limit for the duration of the statement period. The closing balance on 5 February 2012 (including fees and charges consisting of the $20 Overlimit Fee (Exception Fee 21), $215.43 interest charged on purchases and $146.95 ANZ Creditcover Plus) was $18,748.55 (Dr). On 9 February 2012, an employee of Baycorp, a service provider to ANZ, made an outbound call to Mr Paciocco, during which Mr Paciocco promised to pay $748.55 by 10 February, and was advised ‘Not To Use Card’, to ‘Call Back If Problems' and of 'Next Monthly Payment’. On 10 February 2012, a deposit of $1,000 was made into the account, which brought the account back within its credit limit. All of the above transactions were processed as EFTPOS transactions and authorised by CTM. ANZ’s systems automatically waived or reversed




124

No DATE OF

EXCEPTION FEE




Overlimit Fees on Card Accounts if the overlimit amount was within $21.

125

No DATE OF

EXCEPTION FEE





Overlimit $20 Letter of offer dated 24 July 2009


‘ANZ Credit Cards Conditions of Use’ dated December 2011

See Exception Fee 15. The credit limit on the account was $4,000.

As at 13 January 2012 (being the first day of the statement period) the opening balance of the account was $3,773.73 (Dr).

On 17 January 2012 the opening balance of the account was $3,892.82(Dr). A payment in favour of merchant ‘Copies R Us Heidelberg’ of $120 made that day (processed 18 January) caused the debit balance of the account to reach $4,012.82, but a payment of $1,000 on that day reduced the balance of the account to $3,012.82 (Dr). The $21 buffer in respect of overlimit transactions means that the payment noted here would not of itself have caused Mr Paciocco to be charged an Overlimit Fee.

Subsequently, a series of transactions commencing on 30 January (at which the time the opening balance of the account was $3,999.20(Dr)) caused the account to exceed its credit limit again. These were:

• $74 to Northern Caravan Acces Thomastown on 30 January 2012 (processed 31 January), leading to a debit balance of $4,073.20;

• $29.82 to Rays Outdoors Preston on 31 January 2012 (processed 1 February), leading to a debit balance of $4,103.02;

• $49.55 to Aldi 1 Heidelberg We on 31 January 2012 (processed 2 February), leading to a debit balance of $4,152.57;

• $34.43 to AA Templestowe 5361 Templestowe on 31 January 2012 (processed 2 February), leading to a debit balance of $4,187;

• $26.40 to Conga Food Pty Ltd PRE Preston on 1 February 2012 (processed 2 February), leading to a debit balance of $4,213.40;

• $11.98 to Cowboys Csh A Cry APL



• 1 force-posted transaction (because it was a ‘contactless’ transaction made by waving the card in front of an EFTPOS terminal)

• 15 transactions, leading to final debit balance of $4,584.65

Shadow limit: $800 in excess of $4,000 credit limit

126

No DATE OF

EXCEPTION FEE




Thomastown on 1 February 2012 (processed 3 February), leading to a debit balance of $4,225.38;

• $106.28 to The Big Butcher Thomastown on 2 February 2012 (processed 3 February), leading to a debit balance of $4,331.66;

• $48.60 to Chemist Warehouse Preston on 2 February 2012 (processed 3 February), leading to a debit balance of $4,380.26;

• $12.81 to Aldi 1 Heidelberg We on 2 February 2012 (processed 6 February), leading to a debit balance of $4,393.07;

• $19.15 to Go Electrical P/L Preston East on 2 February 2012 (processed 6 February), leading to a debit balance of $4,412.22;

• $8.80 to Bunnings 638000 QPS Northland Cen on 3 February 2012 (processed 6 February) , leading to a debit balance of $4,421.02;

• $40 to Mortimer Petroleum Drysdale on 4 February 2012 (processed 6 February), leading to a debit balance of $4,461.02;

• $13.88 to Safeway 3102 Drysdale on 4 February 2012 (processed 6 February), leading to a debit balance of $4,474.90;

• $30.25 to Aldi 87 Drysdale on 4 February 2012 (processed 7 February), leading to a debit balance of $4,505.15;

• $39 to Gaz Man Nunawading on 6 February 2012 (processed 7 February 2012), leading to a debit balance of $4,544.15;

• $40.50 to Manningham Dental P/L Bulleen on 9 February 2012 (processed 10 February 2012),

127

No DATE OF

EXCEPTION FEE




leading to a debit balance of $4,584.65.

At the end of the statement period, the debit balance of the account was $4,649.38 (Dr) (including fees and charges, consisting of the $20 Overlimit Fee (Exception Fee 22) and $44.73 interest charged on purchases).

The next payment made on the account was a payment of $1000 on 14 February 2012, which brought the account back within its credit limit.

With one exception, all of the above debit transactions were processed as EFTPOS transactions and authorised by CTM.

The payment to Ray’s Outdoors Preston was force-posted because it was “contactless” – made by waving the relevant card in front of a contactless EFTPOS terminal.

No entry on the Control D database reports provided by ANZ corresponds with the Copies R Us Heidelberg transaction and thus its status is unknown. Because this transaction was within the buffer (see comment above), information in respect of this transaction was not put into evidence by ANZ.


128

No DATE OF

EXCEPTION FEE






See Exception Fee 14. The account statement dated 5 February 2012 had a closing balance of $18,748.55 (Dr), and required a ‘Minimum Monthly Payment’ of $360 by the ‘Due Date’ of 1 March 2012, plus an ‘Overdue/Overlimit’ amount payable ‘Immediately’ of $748.55 (being the amount by which the account was overlimit).

No such payment was made. As a result, the fee was charged on 4 March 2012.

The next payment that was made was a payment of $650 on 9 March 2012, and a further payment of $620 on 21 March 2012.

Not Applicable.

129

No DATE OF

EXCEPTION FEE







As at 13 February 2012 (being the first day of the statement period) the opening balance of the account was $4,649.38 (Dr).

A payment of $1,000 on 14 February 2012 reduced the balance to $3,649.38 (Dr), and the balance remained below the credit limit until 29 February 2012.

On 29 February 2012 the opening balance of the account was $3,999.09(Dr), on which date a transaction of $35 to ‘Mowers & More Diamond Creek’ was processed (initiated 28 February), which caused the balance to increase to $4,034.09, and a further transaction processed on 2 March 2012 (of $102.91 to ‘The Big Butcher Thomastown’) caused the balance to increase further to $4,137(Dr).

With fees and charges consisting of the $20 Overlimit Fee (Exception Fee 24) and $41.30 interest charged on purchases, the closing balance on 12 March 2012 was $4,198.30 (Dr).

The next payment made on the account was a payment of $500 on 21 March 2012, which brought the account back within its credit limit.

Both of the above debit transactions, were processed as EFTPOS transactions and authorised by CTM.



The overdrawings were within the shadow limit - 2 transactions, leading to final debit balance of $4,137.


130

No DATE OF

EXCEPTION FEE







Two charges were applied to the account on 4 March 2012 (the last day of the prior statement period) which had sent the account over its credit limit:

• $182.99 interest charged on purchases, leading to a debit balance of $18,110.89;

• $143.08 ANZ Creditcover Plus, leading to a debit balance of $18,253.97.

As at 5 March 2012 (being the first day of the statement period) the opening balance of the account was $18,253.97 (Dr).

On 9 March 2012 a payment of $650 caused the balance of the account to reduce to $17,603.97, which brought the account back within its credit limit.

The balance of the account remained below the credit limit for the duration of the statement period, with a closing balance on 4 April 2012 (including fees and charges) of $17,497.44 (Dr).




• interest charged on purchases, leading to a debit balance of $18,110.89

• ANZ CreditCover Plus premium, leading to a debit balance of $18,253.97


131

No DATE OF

EXCEPTION FEE







A series of transactions in the prior statement period (described above at Exception Fee 24) had caused the debit balance of the account to reach $4,198.30 as at 13 March 2012. $500 was deposited into the account on 21 March 2012, which brought the account back within its credit limit.

At the commencement of 28 March 2012, the balance of Card Account 9629 was $3,698.30(Dr), the credit limit on the account was $4,000 and the shadow limit on the account was $600.

That same day, a recurring direct debit payment of $323.82 was submitted to the MasterCard credit card scheme by merchant MLC (NAFM) Insurance’s acquiring financial institution.

ANZ as issuer was required to accept and settle the transaction, and it was processed (force-posted) the next day, bringing the balance of the account to $4,022.12.

As a result of the processing of the transaction, on 12 April 2012 an Overlimit Fee (Exception Fee 26) was charged to the account.

With fees and charges consisting of the $20 Overlimit Fee (Exception Fee 26) and $44.93 interest charged on purchases, the closing balance on 12 April 2012 was $4,087.05 (Dr).

The next payment made on the account was a payment of $500 on 17 April 2012, which brought the account back within its credit limit.



The overdrawing transaction was authorised pursuant to MasterCard scheme rules.

The shadow limit was not a factor in the posting of the transaction to the account.

132

No DATE OF

EXCEPTION FEE






See Exception Fee 14. The account statement dated 4 April 2012 had a closing balance of $17,497.44 (Dr), and required a ‘Minimum Monthly Payment’ of $348 by the ‘Due Date’ of 30 April 2012.

No such payment was made. As a result, the fee was charged on 6 May 2012.

On 5 May 2012, a member of ANZ’s Collections Team made an outbound call to Mr Paciocco lasting 3.47 minutes. The notes of the call indicate that the account had received this call because of this late payment event, despite the account also being overlimit, as the overlimit amount had not reached the threshold to attract Collections activity. The notes also record that the account had been assigned to a high priority class, meaning that Collections ‘would have employed an active strategy in relation to the account; for example, earlier and more frequent calls to the customer. ’ During that call, Mr Paciocco promised to pay $500 on 7 May from his Saving Account 156, and a further payment of $348 that same day. Mr Paciocco was Advised ‘Of Next Monthly Payment’, ‘Not To Use Card, of ‘Imminent Suspension’ and to ‘Call Back if Problems’.

The next payment that was made was a payment of $500 on 7 May 2012.

Not Applicable.


Late Payment $20 Letter of offer dated 24 July 2009

‘ANZ Personal Banking Account Fees and Charges’ dated June 2012


See Exception Fee 14. The account statement dated 13 May 2012 had a closing balance of $3,954.08 (Dr), and required a ‘Minimum Monthly Payment’ of $80 by the ‘Due Date’ of 7 June 2012.


The next payment that was made was a payment of $500 on 20 June 2012.

Not Applicable.

133

No DATE OF

EXCEPTION FEE






March 2010 Conditions of Use (2) The Credit Limit (c) When a debit is initiated which, if processed, would result in the outstanding balance temporarily exceeding your credit limit, you make a request for an Informal Overlimit amount. ANZ will consider your request for an Informal Overlimit amount and, if both the debit and the account holder satisfy ANZ’s credit criteria for Informal Overlimit amounts, ANZ will allow the debit to be processed as an Informal Overlimit amount, on the following terms… • an Overlimit Fee will be charged

(refer to the Letter of Offer for details);…

• the Informal Overlimit amount, any interest on that amount and any Overlimit Fees will be debited to your credit card account…

‘ANZ Personal Banking Account Fees and Charges’ dated June 2012 Overlimit Fee $20 A. Charged to your credit card account at the end of the “Statement Period” shown on the statement of account where: • any type of debit is initiated on

your credit card account that would cause you to exceed your credit limit during the Statement Period; and

• we agree to provide you with an Informal Overlimit amount to allow this debit to be charged to your credit card account…

The credit limit on the account was $4,000. As at 14 May 2012 (being the first day of the statement period) the opening balance of the account was $3,954.08 (Dr).

On 29 May 2012 (opening balance: $3,954.08(Dr)), a recurring direct debit payment of $323.82 was submitted to the MasterCard credit card scheme by merchant MLC (NAFM) Insurance’s acquiring financial institution. ANZ as issuer was required to accept and settle the transaction, and it was processed the next day, bringing the balance of the account to $4,277.90.

With fees and charges consisting of the $20 Overlimit Fee (Exception Fee 29), a $20 Late Payment Fee (Exception Fee 28) and $44.87 interest charged on purchases, the closing balance on 12 June 2012 was $4,362.77 (Dr).

The next payment that was made was a payment of $500 made on 20 June 2012, which brought the account back within its credit limit.





134

No DATE OF

EXCEPTION FEE







As at 13 June 2012 (being the first day of the statement period) the opening balance of the account was $4,362.77 (Dr) (due to transactions outlined in Fee 29 above).

A payment of $500 on 20 June 2012 reduced the balance to $3,862.77 (Dr), and the balance remained below the credit limit until 29 June 2012.

On 28 June 2012 (opening balance: $3,862.77), a recurring direct debit payment of $323.82 was submitted to the MasterCard credit card scheme by merchant MLC (NAFM) Insurance’s acquiring financial institution.

ANZ as issuer was required to accept and settle the transaction, and it was processed the next day, bringing the balance of the account to $4,186.59. However, a payment of $500 on 9 July 2012 reduced the balance to $3,686.59 (Dr).

The balance of the account remained below the credit limit until the end of the statement period, with a closing balance on 12 July 2012 (including fees and charges consisting of the $20 Overlimit Fee (Exception Fee 30) and $44.01 interest charged on purchase) of $3,750.60 (Dr).





135

No DATE OF

EXCEPTION FEE






‘ANZ Personal Banking Account Fees and Charges’ dated June 2012


See Exception Fee 14. The account statement dated 4 July 2012 had a closing balance of $17,563.77 (Dr), and required a ‘Minimum Monthly Payment’ of $349 by the ‘Due Date’ of 30 July 2012. No such payment was made.

On 4 August 2012, a member of ANZ’s Collections Team made an outbound call to Mr Paciocco lasting 1.78 minutes, during which Mr Paciocco promised to pay $349 on 6 August, and was advised of ‘Next Monthly Payment’, ‘Not To Use Card’, of ‘Imminent Suspension’ and to ‘Call Back if Problems’.

Exception Fee 31 was charged on 5 August 2012. The next payment that was made was a payment of $500 on 7 August 2012.

Not Applicable.



See Exception Fee 29. The credit limit on the account was $4,000. As at 13 July 2012 (being the first day of the statement period) the opening balance of the account was $3,750.60 (Dr). On 28 July 2012 (opening balance: $3,750.60(Dr)), a recurring direct debit payment of $323.82 was submitted to the MasterCard credit card scheme by merchant MLC (NAFM) Insurance’s acquiring financial institution. Because the transaction was a recurring direct debit, ANZ as issuer was required to accept and settle the transaction, and it was processed on 31 July 2012, bringing the balance of the account to $4,074.42. However, a payment of $300 on 7 August 2012 reduced the balance to $3,774.42 (Dr). The account balance remained below the credit limit until the end of the statement period, with a closing balance on 12 August 2012 (including fees and charges) of $3,895.52 (Dr). ANZ’s systems automatically waived or reversed Overlimit Fees on Card Accounts if the overlimit amount was within $21.




136

No DATE OF

EXCEPTION FEE







On 5 August 2012 (the last day of the prior statement period), a payment of $141.84 was made to ANZ Creditcover Plus, which resulted in a debit balance of $18,095.70.

As at 6 August 2012 (being the first day of the statement period) the opening balance of the account was $18,095.70 (Dr).

On 7 August 2012 (opening balance: $18,095.70(Dr)) a payment of $500 caused the balance of the account to reduce to $17,595.70.

The balance of the account remained below the credit limit for the duration of the statement period, save for the imposition of fees and charges, consisting of:

• $192.24 interest charged on purchases posted on 4 September 2012;

• $143.04 ANZ Creditcover Plus posted on 4 September 2012.

which caused the closing balance on 4 September 2012 to increase to $18,249.07 (Dr).

The next payment that was made was a payment of $500 on 7 September 2012, which brought the account back within its credit limit.




• interest charged on purchases, leading to final debit balance of $18,106.03

• ANZ CreditCover Plus premium, leading to a debit balance of $18,095.70

Shadow limits: $540 (prior to 6 August) and $0 (from 6 August) in excess of $18,000 credit limit.

137

No DATE OF

EXCEPTION FEE






See Exception Fee 14. The account statement dated 5 August 2012 had a closing balance of $18,095.70 (Dr), and required a ‘Minimum Monthly Payment’ of $360 by the ‘Due Date’ of 30 August 2012, plus an ‘Overdue/Overlimit’ amount payable ‘Immediately’ of $349 (being the unpaid ‘Minimum Monthly Payment’ from the previous statement).

Although a payment of $500 was made on 7 August 2012, no further payments were made until 5 September 2012 (of $300). As a result, the fee was charged on 4 September 2012.

On 5 September 2012, Mr Paciocco called ANZ’s Collection Team.

Mr Paciocco promised to pay $249.07 on 5 September, and was advised of ‘Next Monthly Payment’, ‘Not To Use Card’, of imminent suspension and/or closure and to ‘Call Back If Problems’.

The account was temporarily excluded from ANZ’s Dialler system, so that the card holder did not receive calls.

Not Applicable.

138

No DATE OF

EXCEPTION FEE





Overlimit $20 Letter of offer dated 24 July 2009

‘ANZ Personal Banking Account Fees and Charges ‘ dated June 2012

‘ANZ Credit Cards Conditions of Use’ dated October 2012


As at 13 December 2012 (being the first day of the statement period) the opening balance of the account was $4,055.72 (Dr).

On 28 December 2012 (opening balance: $4,055.72(Dr)), a recurring direct debit of $366.72 was submitted to the MasterCard credit card scheme by merchant MLC (NAFM) Insurance’s acquiring financial institution.

ANZ as issuer was required to accept and settle the transaction, and it was processed on 31 December 2012, bringing the balance of the account to $4,422.44.

A deposit of $100 was made to the account on 5 January 2013 (processed 7 January 2013), leading to a credit balance of $4,322.44.

With fees and charges consisting of the $20 Overlimit Fee (Exception Fee 35), a $20 Late Payment Fee (Exception Fee 36) and $48.72 interest charged on purchases, the closing balance on 13 January 2012 was $4,411.16 (Dr).

See Collection notes of Exception Fee 36.

The next payment that was made was a payment of $411.16 on 31 January 2013, which brought the account back within its credit limit.





139

No DATE OF

EXCEPTION FEE






See Exception Fee 14. The account statement dated 12 December 2012 had a closing balance of $4,055.72 (Dr), and required a ‘Minimum Monthly Payment’ of $80 by the ‘Due Date’ of 7 January 2013, plus an ‘Overdue/Overlimit’ amount payable ‘Immediately’ of $55.72 (being the amount by which the account was overlimit).

Although a payment of $100 was made on 5 January 2013, no further payments were made until 31 January 2013 (of $411.16). As a result, the fee was charged on 13 January 2013.

On 8 January 2013 at 12.35pm, Mr Paciocco called ANZ’s Collections Team and promised to pay $400 by 17 January, and was advised that he had exceeded his credit limit (the account was overlimit, but Mr Paciocco had yet to receive a statement which recorded this fact) and not to use his card.

On 17 January 2013 at 9:44pm, Mr Paciocco called ANZ’s Collections Team and advised that he had been off ill for a while and was financial overcommitted, but that he could commit to an $80/month scheduled payment. Mr Paciocco asked whether he would qualify for the financial hardship program, but when told that such a program would entail the cancellation of his card, he declined to pursue that option. He promised to pay $411.16 on 25 January. Mr Paciocco was advised that he had exceeded the credit limit and to ‘Call Back If Problems’.

On 29 January 2013 at 2.55pm, a member of ANZ’s Collections Team made an outbound "Wrong Party Connect" call lasting 0.62 minutes, during which the caller left a message on Mr Paciocco’s home phone.

On 31 January 2013 at 2.51pm, a member of ANZ’s Collections Team made an outbound call lasting 4.25 minutes, during which Mr Paciocco was advised that he had not paid the amount he had promised to pay earlier and that he should not use the card. Mr Paciocco advised that he had forgotten to make the payment, and that he was diagnosed

Not Applicable.

140

No DATE OF

EXCEPTION FEE




with Parkinson’s Disease, and promised to pay $411.16 by 4 February. Mr Paciocco was advised to leave funds in his savings account to enable the transfer until 4 February and to ‘Call Back If Problems’.

Payment of $411.16 was made that same day.



See Exception Fee 14. The account statement dated 13 January 2013 had a closing balance of $4,411.16 (Dr), and required a ‘Minimum Monthly Payment’ of $80 by the ‘Due Date’ of 7 February 2013, plus an ‘Overdue/Overlimit’ amount payable ‘Immediately’ of $411.16 (being the amount by which the account was overlimit).

A payment of $411.16 was made on 31 January 2013, but no further payments were made until 12 February 2013 (of $500). As a result, Exception Fee 37 was charged on 12 February 2013.

Not Applicable.





See Exception Fee 14. The account statement dated 4 February 2013 had a closing balance of $18,025.44 (Dr), and required a ‘Minimum Monthly Payment’ of $358 by the ‘Due Date’ of 1 March 2013, plus an ‘Overdue/Overlimit’ amount payable ‘Immediately’ of $25.44 (being the amount by which the account was overlimit).

No further payments were made until 6 March 2013 (of $500). As a result, Exception Fee 38 was charged on 4 March 2013.

Not Applicable.

141

No DATE OF

EXCEPTION FEE







On 4 February 2012 (the last day of the prior statement period), a payment of $141.284 was made to ANZ Creditcover Plus, which resulted in a debit balance of $18,025.44.


No transactions were posted to the account during that statement period prior to 4 March 2013.

On 4 March 2013 (opening balance: $18,025.44(Dr)), the following fees and charges were debited to the account:

• $20 Late Payment Fee (Exception Fee 38);

• $181.76 interest charged on purchases;

• $144.15 ANZ Creditcover Plus,

That same day an Overlimit Fee of $20, being Exception Fee 39, was charged to the account.

The closing balance on 4 March 2013 was $18,391.35 (Dr).

The next payment that was made was a payment of $500 on 6 March 2013, which brought the account back within its credit limit.



It is not clear which overdrawing triggered the fee, the 4 Feb transaction or the three transactions imposing fees and charges on 4 March.

At any rate, all overdrawings were beyond the shadow limit, however it appears that such overdrawings are allowed in respect of fees and charges imposed by ANZ.


142

No DATE OF

EXCEPTION FEE








See Exception Fee 29. The credit limit on the account was $4000.

On 12 February 2013 (the last day of the prior statement period, with an opening balance of $4,000(Dr)):

• a Late Payment Fee of $20 (Exception Fee 37) was charged, leading to a debit balance of $4,020;

• $45.72 of interest charged on purchases was charged, caused the debit balance of the account to reach $4,065.72.


On 6 March 2013 a payment of $500 reduced the balance to $3,565.72 (Dr).

With fees and charges, the closing balance on 4 March 2013 was $3,625.45 (Dr).

On 12 March 2013 an Overlimit Fee of $20, being Exception Fee 40, was charged, leading to a debit balance of $3,585.72.



The overdrawings were beyond the shadow limit however it appears that such overdrawings are allowed in respect of fees and charges imposed by ANZ:

• late payment fee, leading to final debit balance of $4,020



143

No DATE OF

EXCEPTION FEE





Late Payment $20 Letter of offer dated 16 June 2006



See Exception Fee 14. The account statement dated 4 March 2013 had a closing balance of $18,391.35 (Dr), and required a ‘Minimum Monthly Payment’ of $365 by the ‘Due Date’ of 2 April 2013, plus an ‘Overdue/Overlimit’ amount payable ‘Immediately’ of $391.35 (being the amount by which the account was overlimit).

Although a payment of $500 was made on 6 March 2013, no further payments were made until 10 April 2013 (of $400). As a result, the fee was charged on 4 April 2013.

On 9 April 2013, an employee of Baycorp, a service provider to ANZ, made an outbound call to Mr Paciocco at 9:08pm, during which Mr Paciocco ‘advised that he can make the payment but is going to visit the branch tomorrow and speak with someone whether he can get some assistance with making these payments’ and that he was ‘unwell and just out of hospital’.

Not Applicable.



See Exception Fee 14. The account statement dated 4 April 2013 had a closing balance of $18,254.33 (Dr), and required a ‘Minimum Monthly Payment’ of $363 by the ‘Due Date’ of 29 April 2013, plus an ‘Overdue/Overlimit’ amount payable ‘Immediately’ of $254.33 (being the amount by which the account was overlimit). Although a payment of $400 was made on 10 April 2013, no further payments were made until 10 May 2013 (of $300). As a result, Exception Fee 42 was charged on 5 May 2013. On 9 May 2013 at 6:28pm, a member of ANZ’s Collections Team made an outbound call to Mr Paciocco lasting 2.55 minutes, during which Mr Paciocco promised to pay $237.32 on 10 May, and was advised ‘Not to Use Card’, of ‘Imminent Suspension’, of ‘Next Monthly Payment’ and to ‘Call Back If Problems’.

Not Applicable.

144

No DATE OF

EXCEPTION FEE







On 4 April 2013 (the last day of the prior statement period, with an opening balance of $17,891.35(Dr)), the following charges were posted to the account:


• $143.08 ANZ Creditcover Plus, which caused the debit balance of the account to reach $18,254.33.

As at 5 April 2013 (being the first day of the statement period) the opening balance of the account was $18,254.33 (Dr).

A payment of $400 on 10 April 2013 reduced the balance to $17,854.33 (Dr). With fees and charges (consisting of $200.04 interest charged on purchases and $142.95 ANZ Creditcover Plus), the closing balance on 4 March 2013 was $18,237.32 (Dr).

See notes of Collections activity re Fee 42.

The next payment that was made was a payment of $300 on 10 May 2013, which brought the account back within its credit limit.







145

No DATE OF

EXCEPTION FEE







On 5 May 2013 (the last day of the prior statement period, with an opening balance of $17,854.33(Dr)):

• $200.04 interest charged on purchases was debited to the account, leading to a debit balance of $18,094.37; and

• a $142.95 ANZ Creditcover Plus payment debited to the account caused the debit balance of the account to reach $18,237.32.

A payment of $300 on 10 May 2013 reduced the balance to $17,937.32 (Dr).

On 4 June 2013 an Overlimit Fee, being Exception Fee 44, was charged, leading to a debit balance of $17,977.32.







146

No DATE OF

EXCEPTION FEE






‘ANZ Credit Cards Conditions of Use’ dated July 2013

‘ANZ Personal Banking Account Fees and Charges’ dated July 2013

See Exception Fee 14. The account statement dated 4 June 2013 had a closing balance of $18,011.76 (Dr), and required a ‘Minimum Monthly Payment’ of $358 by the ‘Due Date’ of 1 July 2013, plus an ‘Overdue/Overlimit’ amount payable ‘Immediately’ of $11.76 (being the amount by which the account was overlimit).

No payments were made until 17 July 2013 (of $460). As a result, Exception Fee 45 was charged on 4 July 2013.

On 9 July 2013 at 9:34am, Mr Paciocco called the ANZ Collections Team during which he promised to pay $426.57 by 15 July, and was advised ‘Not To Use Card’, of ‘Imminent Suspension’, to ‘Call Back If Problems’ and of ‘Next Monthly Payment’. The account was temporarily excluded from ANZ’s Dialler system (so that Mr Paciocco would not receive Collections calls) due to his being in hospital.

That same day at 8:14pm, an automated call was placed by ANZ’s Zirconia system, which played a pre-recorded message to Mr Paciocco. Mr Paciocco did not select an option to make a payment.

On 17 July 2013 at 2:02pm, a member of ANZ’s Collections Team made an outbound call to Mr Paciocco lasting 21.43 minutes, during which Mr Paciocco was advised that he had failed to pay the amount he had previously promised to pay, and Mr Paciocco said he thought he had made a payment last week at a branch. Mr Paciocco promised to pay $460 on 17 July from his Saving Account 156, and was advised ‘Not To Use Card’, of ‘Next Monthly Payment’ and to ‘Call Back If Problems’.

On 17 July a payment of $460 was made to the account.

Not Applicable.

147

No DATE OF

EXCEPTION FEE






‘ANZ Credit Cards Conditions of Use’ dated July 2013

‘ANZ Personal Banking Account Fees and Charges’ dated July 2013

See Exception Fee 14. The account statement dated 12 June 2013 had a closing balance of $3,391.52 (Dr), and required a ‘Minimum Monthly Payment’ of $68 by the ‘Due Date’ of 8 July 2013.

No payments were made until 17 July 2013 (of $70). As a result, the fee was charged on 14 July 2013.

On 17 July 2013 at 2:02pm, a member of ANZ’s Collections Team made an outbound call to Mr Paciocco lasting 21.43 minutes (being the same call referred to in respect of Exception Fee 45), during which Mr Paciocco promised to pay $70 by 17 July, and was advised ‘Not To Use Card’, of ‘Imminent Suspension’, of ‘Next Monthly Payment’ and to ‘Call Back If Problems’.

Not Applicable.



See Exception Fee 14. The account statement dated 4 July 2013 had a closing balance of $18,426.57 (Dr), and required a ‘Minimum Monthly Payment’ of $366 by the ‘Due Date’ of 29 July 2013, plus an ‘Overdue/Overlimit’ amount payable ‘Immediately’ of $426.57 (being the amount by which the account was overlimit).

Although a payment of $460 was made on 17 July 2013, no further payments were made until 8 August 2013 (of $360). As a result, Exception Fee 47 was charged on 4 August 2013.

On 8 August 2013 at 4:30pm, a member of ANZ’s Collections Team made an outbound call to Mr Paciocco lasting 2.92 minutes, during which Mr Paciocco promised to pay $350.64 on 9 August, and was advised ‘Not To Use Card’, of ‘Imminent Suspension’, of ‘Next Monthly Payment’ and to ‘Call Back If Problems’.

Not Applicable.

148

No DATE OF

EXCEPTION FEE







On 4 July 2013 (the last day of the prior statement period, with an opening balance of $18,011.76(Dr)), the following charges were posted to the account:

• a $20 Late Payment Fee (Exception Fee 45), leading to a debit balance of $18,031.76

• a $58 Annual Fee, leading to a debit balance of $18,089.76

• $192.38 interest charged on purchases, leading to a debit balance of $18,282.14

• a $144.43 ANZ Creditcover Plus which caused the debit balance of the account to reach $18,426.57.

As at 5 July 2013 (being the first day of the statement period) the opening balance of the account was $18,426.27 (Dr). A payment of $460 on 17 July 2013 reduced the balance to $17,966.57 (Dr). With fees and charges consisting of the $20 Overlimit Fee (Exception Fee 48), a $20 Late Payment Fee (Exception Fee 47), $200.24 interest charged on purchases and $143.83 ANZ Creditcover Plus, the closing balance on 4 August 2013 was $18,350.64 (Dr).

See Collection notes in respect of Exception Fee 47.

The next payment that was made was a payment of $360 on 8 August 2013, which brought the account back within its credit limit.




• late payment fee, leading to debit balance of $18,031.76

• Annual Fee, leading to a debit balance of $18,089.76


• Creditcover Plus, leading to a debit balance of $18,426.57


149

No DATE OF

EXCEPTION FEE






See Exception Fee 14. The account statement dated 14 July 2013 had a closing balance of $3,450.15 (Dr), and required a ‘Minimum Monthly Payment’ of $69 by the ‘Due Date’ of 8 August 2013, plus an ‘Overdue/Overlimit’ amount payable ‘Immediately’ of $68 (being the amount by which the account was overlimit).

Although a payment of $70 was made on 17 July 2013, no further payments were made until 19 August 2013 (of $100). As a result, the fee was charged on 12 August 2013.

Not Applicable.




As at 5 August 2013 (being the first day of the statement period) the opening balance of the account was $18,350.64 (Dr) (due to the application of fees and charges outlined at Exception Fee 48 above).

A payment of $360 on 8 August 2013 and of $370 on 19 August 2013 reduced the balance to $17,620.64 (Dr). With fees and charges, the closing balance on 4 September 2013 was $17,978.23 (Dr).



The overdrawings were beyond the shadow limit however it appears that such overdrawings are allowed in respect of fees and charges imposed by ANZ on 4 August 2013:

• late payment fee, leading to debit balance of $18,006.57


• Creditcover Plus, leading to a debit balance of $18,350.64


150

No DATE OF

EXCEPTION FEE




SDG – BUSINESS EXCEPTION FEES

51 04-Mar-10 Business Account 58555

Business Honour

$37.70 Signature Card for Business Account 58555 dated 15 December 2008

Company/Formal Trust Account Authority for SDG dated 15 December 2008

December 2009 Terms and Conditions

December 2009 Business Fees and Charges Booklet

December 2009 Terms and Conditions: If you satisfy ANZ’s credit criteria for an Informal Overdraft facility, ANZ will agree to your request by allowing the debit to be processed as an Informal Overdraft, on the following terms: If the balance of your

Informal Overdraft facility exceeds $50 at the time of your request, or will exceed $50 once the debit requested is processed, you will be charged an Informal Overdraft Assessment Fee on the day on which the debit is processed (or if that day is not a business day, on the next business day). The Informal Overdraft Assessment Fee (referred to in your bank statements and in the ‘ANZ Business Banking Transaction Accounts Fees and Charges’ booklet as an ‘Honour Fee’) is payable immediately…

December 2009 Business Fees and Charges Booklet: Honour Fee $37.70 Charged for considering a request for an Informal Overdraft where you satisfy ANZ’s credit criteria for an Informal Overdraft, and the balance of your Informal Overdraft facility exceeds $50 at the time of your request or will exceed $50 after the debit requested has been processed.

The account had no approved overdraft limit.

On 4 March 2010 (opening balance: $121.01 in credit), a direct debit payment in the amount of $224.40, made by way of the Direct Entry system administered by APCA, and described as ‘To Northern30174507’ caused the balance of the account to move from $121.01 (Cr) to $103.39 (Dr).

Together with the Honour Fee of $37.70, the closing balance on that day was $141.09 (Dr).

On 11 March 2010, a deposit of $1,687.50 caused the balance of the account to return to credit.


The overdrawing was within the shadow limit:

• a recurring direct debit, leading to a final debit balance of $103.39

Shadow limit – Batch Excess Shadow Limit: $3,000.

151

No DATE OF

EXCEPTION FEE




52 09-Jul-10 Business Account 58555

Business Honour

$37.70 See Exception Fee 51.

See Exception Fee 51. The account had no approved overdraft limit.

On 9 July 2010 (opening balance: $350.70 in credit) at 13:53, CTM authorised the withdrawal of $300 from an ATM.

On 10 July 2010 (opening balance: $203.28(Dr)) at 01:00, CTM authorised cheque number 001113 for $216.28 to ANZ by way of the electronic exchange of data with another bank.

According to the bank statement however, the transactions were both posted to the account on 9 July 2010 in the following order:

• the cheque for $216.28 was presented to ANZ and led to a credit balance of $134.42; and subsequently

• an ATM withdrawal of $300 led to a debit balance of $165.58.

An Honour Fee of $37.70, being Exception Fee 52, was charged that same day, leading to a closing balance that day of $203.28 (Dr).

On 14 July 2010, a deposit of $102.85 caused the balance of the account to increase to $100.43 (Dr), and on 15 July 2010 a further deposit of $2,711.50 caused the balance of the account to return to credit.



• Cheque number 001113 for $216.28 was presented to ANZ by way of the electronic exchange of data with another bank, and an ATM withdrawal of $300 led to a debit balance of $165.58.

Shadow limit – Online Excess Shadow Limit: $200

Shadow limit – Batch Excess Shadow Limit: $4,000

152

No DATE OF

EXCEPTION FEE




53 21-Nov-11 Business Account 58555

Business Honour



Overdraft facility Letter of Offer for $10,000 dated 28 April 2011

‘Finance Conditions of Use - ANZ Business Banking’ dated August 2011

‘Business Transaction Accounts Terms and Conditions - ANZ Business Banking’ dated November 2011

‘Transaction Accounts Fees and Charges - ANZ Business Banking’ dated November 2011

December 2009 Terms and Conditions:

If you satisfy ANZ’s credit criteria for an Informal Overdraft facility, ANZ will agree to your request by allowing the debit to be processed as an Informal Overdraft, on the following terms:

If the balance of your Informal Overdraft facility exceeds $50 at the time of your request, or will exceed $50 once the debit requested is processed, you will be charged an Informal Overdraft Assessment Fee on the day on which the debit is processed (or if that day is not a business day, on the next business day). The Informal Overdraft Assessment Fee (referred to in your bank statements and in the ‘ANZ Business Banking Transaction Accounts Fees and Charges’ booklet as an ‘Honour Fee’) is payable immediately…

December 2009 Business Fees and Charges Booklet:

Honour Fee $37.70

Charged for considering a request for an Informal Overdraft where you satisfy ANZ’s credit criteria for an Informal Overdraft, and the balance of your Informal Overdraft facility exceeds $50 at the time of your request or will exceed $50 after the debit requested has been processed.

The account had an overdraft limit of $10,000.

On 21 November 2011 (opening balance: $9,970.87(Dr)), cheque number 001310 for $357.50 was presented to ANZ, authorised by CTM by way of the electronic exchange of data with another bank, caused the balance of the account to move from $9,970.87 (Dr) to $10,328.37 (Dr).

An Honour Fee of $37.70, being Exception Fee 53, was charged that same day, leading to a closing balance of $10,366.07 (Dr).

A deposit of $12,000 on 28 November 2011 caused the balance of the account to return to credit, and on 29 November 2011, the overdraft limit on the account was increased to $49,999.



• Cheque presentation, leading to a final debit balance of $10,328.37.

Shadow limit – Batch Excess Shadow Limit: $2,500 in excess of an overdraft limit of $10,000.

153

No DATE OF

EXCEPTION FEE




Overdraft Letter of Offer dated 28 April 2011:

A fee is charged if the balance of your Overdraft facility exceeds $50 or will exceed $50 after a requested debit has been processed. This fee is for considering a request for an Informal Overdraft where you satisfy ANZ’s credit criteria …

54 24-Nov-11 Business Account 58555

Business Honour


See Exception Fee 53. The account had an overdraft limit of $10,000.

On 24 November 2011 (opening balance: $10,366.07(Dr)), cheque number 001332 for $600 was presented to ANZ, authorised by CTM by way of the electronic exchange of data with another bank, and caused the balance of the account to move from $10,366.07 (Dr) to $10,996.07 (Dr).

That same day on Honour Fee of $37.70, being Exception Fee 54, was charged, leading to a closing balance on that day of $11,003.77 (Dr).

A deposit of $12,000 on 28 November 2011 caused the balance of the account to return to credit balance of $996.23.

On 29 November 2011, the overdraft limit on the account was increased to $49,999.



• Cheque presentation, leading to a debit balance of $10,966.07


154

No DATE OF

EXCEPTION FEE




55 02-Aug-12 Business Account 58555

Business Honour





Overdraft facility Letter of Offer to $49,999 dated 29 November 2011

April 2012 Business Fees and Charges Booklet

‘Business Transaction Accounts Terms and Conditions - ANZ Business Banking’ dated August 2012


If you satisfy ANZ’s credit criteria for an Informal Overdraft facility, ANZ will agree to your request by allowing the debit to be processed as an Informal Overdraft, on the following terms:

If the balance of your Informal Overdraft facility exceeds $50 at the time of your request, or will exceed $50 once the debit requested is processed, you will be charged an Informal Overdraft Assessment Fee on the day on which the debit is processed (or if that day is not a business day, on the next business day). The Informal Overdraft Assessment Fee (referred to in your bank statements and in the ‘ANZ Business Banking Transaction Accounts Fees and Charges’ booklet as an ‘Honour Fee’) is payable immediately…

December 2009 Business Fees and Charges Booklet:

Honour Fee $37.70


The account had an overdraft limit of $49,999. On 2 August 2012 (opening balance: $49,598.54(Dr)) the following transactions were conducted:

• cheque number 001448 for $500 was presented to ANZ, authorised by CTM, and led to a debit balance of $50,098.54;

• cheque number 001449 for $500 was presented to ANZ, authorised by CTM by way of the electronic exchange of data with another bank, and led to a debit balance of $50,598.54;

• an EFTPOS transaction for $20 (described as ‘Burwood Plumbing 9 Tudor Stree00’) was authorised by CTM and led to a debit balance of $50,618.54.

The two cheque transactions were authorised by ANZ’s CTM payment system.

However, the EFTPOS transaction was not authorised by CTM, but was instead force-posted, because at that time the merchant’s EFTPOS terminal could not communicate with ANZ.

That same day an Honour Fee of $37.70, being Exception Fee 55, was charged, leading to a closing balance of $50,656.24 (Dr).

A transfer of $4,000 on the following day (from ‘Marie Murphy Marie Murphy’) caused the balance of the account to reduce below the overdraft limit.



• 2 cheque presentations, leading to a debit balance of $50,598.54

• 1 EFTPOS transaction force-posted because it was made at a time that the merchant’s terminal could not communicate with ANZ, leading to a final debit balance of $50,618.54

Shadow limit for cheques – Batch Excess Shadow Limit: $3,450 in excess of an overdraft limit of $49,999.

155

No DATE OF

EXCEPTION FEE




Overdraft Letter of Offer dated 29 November 2011:

An Honour Fee of $37.70 is payable “if ANZ pays drawings on your account in excess of the Facility Limit. This fee is payable on the date of the excess drawing.


Business Honour


See Exception Fee 55. The account had an overdraft limit of $49,999. On 16 August 2012 (opening balance: $48,860.63(Dr)) the following transactions were conducted:

• a deposit of $330 described as ‘card entry at roxburgh park branch’, leading to a debit balance of $48,530.63;

• cheque number 001450 for $990 was presented to ANZ, authorised by CTM, leading to a debit balance of $49,520.63;

• cheque number 001451 for $560 was presented to ANZ, authorised by CTM by way of the electronic exchange of data with another bank, leading to a debit balance of $50,080.63.


On 22 August 2012 a deposit of $340 and a transfer of $6,829.40 (from ‘Marie Murphy Murphy Bathroom’ caused the balance of the account to reduce below the overdraft limit to a closing debit balance of $43,286.53.





156

No DATE OF

EXCEPTION FEE





Business Honour



On 20 August 2012 (opening balance: $50,118.33(Dr)) a recurring direct debit in the amount of $112.20 (described as ‘To Flexirent 981930’), and made by way of the Direct Entry system administered by APCA, caused the balance of the account to move from $50,118.33 (Dr) to $50,230.53 (Dr). Together with the Honour Fee of $37.70, the closing balance on that day was $50,268.23 (Dr).

On 21 August, a further overdrawing transaction occurred, leading to Exception Fee 58.

On 22 August 2012 a deposit of $340 and a transfer of $6,829.40 (from ‘Marie Murphy Murphy Bathroom’ caused the balance of the account to reduce below the overdraft limit to a closing debit balance of $43,286.53.



• Recurring direct debit, leading to a debit balance of $50,230.53



Business Honour



On 21 August 2012 (opening balance: $50,268.23(Dr)) cheque number 001452 for $150 was presented to ANZ, authorised by CTM by way of the electronic exchange of data with another bank, leading to a debit balance of $50,418.23.

Together with the Honour Fee of $37.70, the closing balance on that day was $50,455.93 (Dr).

On 22 August 2012 a deposit of $340 and a transfer of $6,829.40 (from ‘Marie Murphy Murphy Bathroom’) caused the balance of the account to reduce below the overdraft limit to a closing debit balance of $43,286.53.





157

No DATE OF

EXCEPTION FEE




59 27-Dec-12 Business Account 58555

Business Honour




Overdraft facility Letter of offer to $49,999 dated 29 November 2011


‘Finance Fees and Charges - ANZ Business Banking’ dated November 2012

‘Business Transaction Accounts Terms and Conditions - ANZ Business Banking’ dated November 2012


On 27 December 2012 (opening balance: $50,027.39(Dr)) an EFTPOS payment authorised by CTM in the amount of $30 (described as ‘FILA Waterfront City Docklands VI’ and with an effective date of 26 December) caused the balance of the account to move from $50,027.39 (Dr) to $50,057.39 (Dr).

That same day an Honour Fee of $37.70 was charged, being Exception Fee 59, leading to a closing balance on that day of $50,095.09 (Dr).

A deposit of $200 was made on 2 January 2013, however on this date a further payment of $224.40 from the account (see Exception Fee 61 below) meant that the balance remained in excess of the overdraft limit (until 13 February 2013).



• on 24 December 2012 an EFTPOS payment to ‘The Big Butcher Thomastown’ (with an effective date of 23 December) in the amount of $103.99 lead to a debit balance of $50,027.39

• on 27 December 2012 a payment to ‘FILA Waterfront City Docklands VI’ (with an effective date of 26 December) led to a debit balance of $50,057.39.

Shadow limit – Online Excess Shadow Limit: $100 in excess of an overdraft limit of $49,999.

158

No DATE OF

EXCEPTION FEE




60 28-Dec-12 Business Account 58555

Business Honour



On 28 December 2012 (opening balance: $50,095.09(Dr)) an EFTPOS transaction was authorised by CTM in the amount of $34.06 (described as ‘BP LT RIV GB 4117 Little River’) caused the balance of the account to move from $50,095.09 (Dr) to $50,129.15 (Dr).


A deposit of $200 was made on 2 January 2013, however on this date a further payment of $224.40 from the account (see Exception Fee 61 below) meant that the balance remained in excess of the overdraft limit (until 13 February 2013).



• EFTPOS transaction, leading to a debit balance of $50,129.15

Shadow limit – Online Excess Shadow Limit: $100 in excess of an overdraft limit of $49,999.

61 02-Jan-13 Business Account 58555

Business Honour



On 2 January 2013 (opening balance: $50,166.85(Dr)), a payment in the amount of $200 and a recurring direct debit in the amount of $224.40 (described as ‘Northern30174507 30174507’) authorised by CTM by way of the Direct Entry system administered by APCA, caused the balance of the account to move to $50,191.25 (Dr).


On 13 February 2013 a deposit from ‘Bendigo Bank MBIC-11 Stonegate’ of $1,300 caused the balance of the account to reduce below the overdraft limit, to $49,817.33.



• Recurring direct debit, leading to a debit balance of $50,191.25


159

No DATE OF

EXCEPTION FEE





Business Dishonour



A cheque may, at ANZ’s discretion, be dishonoured or payment refused where, inter alia, there are insufficient funds in the account of the drawer, and that “ANZ may charge a dishonour fee”.

…

If you do not satisfy ANZ's credit criteria for an Informal Overdraft, ANZ will decline your request and will not allow the debit to be processed. You will be charged an Informal Overdraft Assessment Fee (referred to in your bank statements and in the 'ANZ Business Banking Transaction Accounts Fees and Charges' booklet as an 'Outward Dishonour Fee') and this fee is payable immediately.


Outward Dishonour Fee - $37.70 per dishonour

Charged for considering a request for an Informal Overdraft where you do not satisfy ANZ’s credit criteria for an Informal Overdraft.


On 7 January 2013 (opening balance: $50,228.95(Dr)) a recurring direct debit payment in the amount of $523.73 authorised by SDG and made by way of the ANZ Cash Management Platform to an ANZ account held by the recipient (described as ‘A&G Insurance 111734598012251534’) caused the balance of the account to move from $50,228.95 (Dr) to $50,752.68 (Dr).

On 8 January 2013, the transaction was automatically referred to the NSF team. The NSF team considered whether to honour or dishonour a payment in the amount of $523.73 to A&G Insurance which, if honoured, would result in the account being overdrawn by $753.68 and decided to dishonour the payment.

On 8 January 2013 the payment was dishonoured (effective 7 January).

That same day a Dishonour Fee of $37.70, being Exception Fee 62, was charged, leading to a closing balance of $50,266.65 (Dr).

On 13 February 2013 a transfer from ‘Bendigo Bank MBIC-11 Stonegate’ of $1,300 caused the balance of the account to reduce below the overdraft limit, to $49,817.33.

BEYOND SHADOW

The overdrawing was dishonoured:

• recurring direct debit would, if honoured, have led to a debit balance of $50,752.68

• on 8 January the transaction was automatically referred to the NSF team and was dishonoured that day.

Shadow limit at monthly cycle date – Batch Excess Shadow Limit: $1,800 in excess of an overdraft limit of $49,999.

160

No DATE OF

EXCEPTION FEE





Business Dishonour


See Exception Fee 62. The account had an overdraft limit of $49,999. On 18 January 2013 (opening balance: $50,891.13(Dr)) a recurring direct debit payment in the amount of $112.20 authorised by SDG and made by way of the Direct Entry system which is administered by APCA to a non-ANZ account held by the recipient (described as ‘Flexirent 981930’) would, if honoured, have caused the balance of the account to move from $50,891.13 (Dr) to $51,003.33 (Dr).

On 19 January 2013, the transaction was automatically referred to the NSF team. The NSF team considered whether to honour or dishonour a payment in the amount of $112.20 to “Flexirent”, which, if honoured, would result in the account being overdrawn by $1,004.33 and decided to dishonour the payment.

On 21 January 2013, the payment was dishonoured (effective 18 January).

That same day a Dishonour Fee of $37.70, being Exception Fee 63, was charged, which together with other transactions, lead to a closing balance of $51,463.56 (Dr).

On 13 February 2013, a deposit from ‘Bendigo Bank MBIC-11 Stonegate’ of $1,300 caused the balance of the account to reduce below the overdraft limit, to $49,817.33.

BEYOND SHADOW

The overdrawing was beyond the shadow limit:


• on 19 January the transaction was automatically referred to the NSF team and it was dishonoured on 21 January)

Shadow limit – Batch Excess Shadow Limit: $0 in excess of an overdraft limit of $49,999.

161

No DATE OF

EXCEPTION FEE





Business Dishonour


See Exception Fee 62. Two Business Dishonour Fees were charged on 22 January 2013, being Exception Fees 64 and 65.


On 21 January 2013, (opening balance: $51,003.33 (Dr)) the following transactions were conducted:

• the $112.20 direct debit giving rise to Fee 63 was dishonoured (described as ‘Reversal of Payment’ ‘Effective Date 21 Jan 2013’), leading to a debit balance of $50,891.13;

• a recurring direct debit payment authorised by SDG in the amount of $11 made by way of the ANZ Cash Management Platform to an ANZ account held by the recipient (described as ‘A&G Insurance 111734598012336872’) would, if honoured together with the other transactions on that day, have caused the balance of the account to move from $50,891.13 (Dr) to $50,902.13 (Dr);

• a dishonour fee of 37.70 (being Exception Fee 63 discussed above) was posted to the account, leading to a debit balance of $50,939.83;

• a recurring direct debit payment authorised by SDG in the amount of $523.73 made by way of the ANZ Cash Management Platform to an ANZ account held by the recipient (described as ‘A&G Insurance 111734598012336871’) would, if honoured together with the other transactions on that day, have led to a debit balance of $51,463.56.

On 22 January 2013, the two direct debit payments to A&G Insurance were automatically referred to the NSF team. The NSF team considered whether to honour or dishonour two payments to A&G Insurance in the amounts of $11 and $523.73 which, with other debit transactions due on the account, would result in the account being overdrawn by $1,147.43 and decided to dishonour the payment(s).

BEYOND SHADOW


• recurring direct debit would, if honoured together with the other transactions on that day, have led to a debit balance of $50,902.13

• on 22 January the transaction was automatically referred to the NSF team and was dishonoured that day


162

No DATE OF

EXCEPTION FEE




On 22 January 2013 the following transactions were conducted:

• the $11 direct debit was dishonoured (effective 21 January) leading to a debit balance of $51,452.56 (Dr);

• the $523.73 direct debit was dishonoured (effective 21 January) leading to a debit balance of $50,928.83 (Dr);

• a Dishonour Fee of $37.70 (being Exception Fee 64) was posted to the account leading to a debit balance of $50,966.53 (Dr);

• a further Dishonour Fee of $37.70 (being Fee 65, see below) was posted to the account, leading to a closing balance of $51,004.23 (Dr) that day.


163

No DATE OF

EXCEPTION FEE





Business Dishonour


See Exception Fee 62. See Exception Fee 64. BEYOND SHADOW


• Recurring direct debit would, if honoured together with the other transactions on that day, have led to a debit balance of $51,463.56

• on 22 January the transaction was automatically referred to the NSF team and it was dishonoured that day


164

No DATE OF

EXCEPTION FEE





Business Dishonour



On 29 January 2013, (opening balance: $51,004.23(Dr)) a recurring direct debit payment in the amount of $142.20 authorised by SDG and made by way of the Direct Entry system which is administered by APCA to a non-ANZ account held by the recipient (described as ‘Flexirent 981930’) would, if honoured, have caused the balance of the account to move from $51,004.23 (Dr) to $51,146.43 (Dr).

On 30 January 2013, the direct debit was automatically referred to the NSF team. The NSF team considered whether to honour or dishonour a payment in the amount of $142.20 to “Flexirent” which, if honoured, would result in the account being overdrawn by $1,147.43 and decided to dishonour the payment.

On 30 January 2013, the direct debit was dishonoured (effective 29 January).

That same day a Dishonour Fee of $37.70, being Exception Fee 66, was charged, leading to a closing balance on that day of $51,041.93 (Dr).


BEYOND SHADOW


• recurring direct debit would have, if honoured, led to a debit balance of $51,146.43

• on 30 January the transaction was automatically referred to the NSF team and was dishonoured that day


165

No DATE OF

EXCEPTION FEE




67 04-Feb-13 Business Account 58555

Business Dishonour



On 1 February 2013 (opening balance: $51,041.93 (Dr)) a recurring direct debit payment in the amount of $224.40 authorised by SDG and made by way of the Direct Entry system which is administered by APCA to a non-ANZ account held by the recipient (described as ‘Northern30174507 30174507’) would, if honoured, have caused the balance of the account to move from $51,041.93 (Dr) to $51,266.33 (Dr).

On 2 February 2013 the direct debit was automatically referred to the NSF team. The NSF team considered whether to honour or dishonour a payment in the amount of $224.40 to "Northern" which, if honoured, would result in the account being overdrawn by $1,267.33 and decided to dishonour the payment.

On 4 February 2013 the direct debit was dishonoured (effective 1 February).

That same day a Dishonour Fee of $37.70, being Exception Fee 67, lead to a closing debit balance of $51,079.63 (Dr).


BEYOND SHADOW



• on 2 February the transaction was automatically referred to the NSF team and was dishonoured on 4 February


166

No DATE OF

EXCEPTION FEE





Business Dishonour


See Exception Fee 62. The account had an overdraft limit of $49,999. On 11 February 2013 (opening balance: $51,079.63 (Dr)) a recurring direct debit payment in the amount of $257.40 authorised by SDG and made by way of the Direct Entry system which is administered by APCA to a non-ANZ account held by the recipient (described as ‘Northern30174507 30174507’) would, if honoured, have caused the balance of the account to move from $51,079.63 (Dr) to $51,337.03 (Dr). On 5 February 2013, a member of ANZ’s Collections Team made outbound calls to Mr Paciocco’s home and mobile phones, but neither calls were answered. The operator ‘issued Collections letter #002’. On 12 February 2013: • a member of ANZ’s Collections Team made

outbound calls to Mr Paciocco’s home and mobile phones, but neither calls were answered;

• the direct debit was automatically referred to the NSF team. The NSF team considered whether to honour or dishonour a payment in the amount of $257.40 to “Northern” which, if honoured, would result in the account being overdrawn by $1,338.03 and decided to dishonour the payment.

• the direct debit was dishonoured (effective 11 February);

• a Dishonour Fee of $37.70, being Exception Fee 68, was charged, leading to a closing balance that day of $51,117.33 (Dr).


BEYOND SHADOW



• on 12 February the transaction was automatically referred to the NSF team and was dishonoured that day


167

No DATE OF

EXCEPTION FEE





Business Dishonour



On 18 February 2013 (opening balance: $50,436.41 (Dr)) a recurring direct debit payment in the amount of $112.20 authorised by SDG and made by way of the Direct Entry system which is administered by APCA to a non-ANZ account held by the recipient (described as ‘Flexirent 981930’) would, if honoured, have caused the balance of the account to move from $50,436.41 (Dr) to $50,548.61 (Dr).

On 19 February 2013:

• the direct debit was automatically referred to the NSF team. The NSF team considered whether to honour or dishonour a payment in the amount of $112.20 to "Flexirent" which, if honoured, would result in the account being overdrawn by $549.61 and decided to dishonour the payment.

• the direct debit was dishonoured (effective 18 February);

• a Dishonour Fee of $37.70, being Exception Fee 69, was charged, leading to a closing balance on that day of $50,474.11 (Dr).

A deposit on 21 February 2013 caused the balance of the account to reduce below the overdraft limit.

BEYOND SHADOW



• on 19 February the transaction was automatically referred to the NSF team and was dishonoured that day


168

No DATE OF

EXCEPTION FEE




70 18-Mar-13 Business Account 58555

Business Dishonour




Overdraft facility Letter of offer to $49,999 dated 29 November 2011


‘Business Transaction Accounts Terms and Conditions - ANZ Business Banking’ dated March 2013

‘Finance Fees and Charges - ANZ Business Banking’ dated March 2013


On or about 14 March 2013, SDG drew a cheque no 001474 on the account in favour of R & J Garage Doors for $1000.

On 15 March 2013 (opening balance: $48,755.88 (Dr)):

• an electronic exchange of data between ANZ and another bank arising as a result of cheque 001474 being deposited by the recipient at a non-ANZ bank would, if honoured together with other transactions charged to the account that day, have caused the account to move to a debit balance of $50,442.10;

• a ‘Credit Facility Fee – Overdrafts’ of $149.18 was charged to the account;

• debit interest of $521.04 was charged to the account;

• an ‘Account Servicing Fee’ of $12 was charged to the account;

• a ‘5 Excess Cheque Transaction Fee’ was charged to the account.

On 16 March, cheque 001474 was automatically referred to the NSF team. The NSF team considered whether to honour or dishonour the cheque in the amount of $1,000 which, with various other debit transactions due on the account, would overdraw the account by $443.10 and decided to dishonour the cheque.

On 18 March 2013:

• an Honour/Overdrawn Fee of $37.70 which was debited to the account that same day was credited to the account as a result of a waiver;

BEYOND SHADOW

The following transactions were made on 15 March:

• cheque presentation

• credit facility fee – overdrafts

• debit interest charged

• account servicing fee

• 5 excess cheque transaction fee

On 16 March, the cheque was automatically referred to the NSF team.

The cheque was dishonoured on 18 March.


169

No DATE OF

EXCEPTION FEE




• cheque 001474 was dishonoured (effective 15 March);

• a Dishonour Fee of $37.70, being Exception Fee 70, was charged;

• The closing balance on 18 March 2013 was $49,591.35

170

No DATE OF

EXCEPTION FEE




71 18-Apr-13 Business Account 58555

Business Dishonour



On or about 12 April 2013, SDG drew a cheque no 001490 on the account in favour of Bundoora Floors Pty Ltd for $4,200.

On 17 April 2013 (opening balance: $44,705.60 (Dr)):

• cheque 001480 for $430 was presented to the account, which would, if honoured together with other transactions charged to the account that day, have caused the account to move to a debit balance of $51,151.36;

• an electronic exchange of data between ANZ and another bank arising as a result of cheque 001490 for $4,200 being deposited by the recipient at a non-ANZ bank would, if honoured together with other transactions charged to the account that day, have caused the account to move to a debit balance of $51,151.36;

• cheque 001491 for $1,480 was presented to the account, which would, if honoured together with other transactions charged to the account that day, have caused the account to move to a debit balance of $51,151.36;

• an EFTPOS transaction for $335.76 (described as ‘Euro Star Automotive Brunswick Vi’) was debited to the account.

On 18 April, these transactions were automatically referred to the NSF team as a batch.

The NSF team considered whether to honour or dishonour a cheque in the amount of $4,200 which, with various other debit transactions due on the account, would overdraw the account by $1,152.36 and decided to dishonour the cheque.

On 18 April:

BEYOND SHADOW

On 18 April, four transactions were automatically referred to the NSF team as a batch and cheque 001490 was dishonoured that day.

Shadow limit – Batch Excess Shadow Limit (for cheque transactions): $1,000 in excess of an overdraft limit of $49,999; Online Excess Shadow Limit (for EFTPOS transaction): $100 in excess of an overdraft limit of $49,999.

171

No DATE OF

EXCEPTION FEE




• cheque 001490 was dishonoured (effective 17 April);

• an EFTPOS transaction of $32.77 was debited to the account;

• a Dishonour Fee of $37.70, being Fee 71, was charged;

• The closing balance on 18 April 2013 was $47,021.83.

72 23-Jul-13 Business Account 58555

Business Honour


See Exception Fee 55. The account had an overdraft limit of $49,999. On 15 July 2013 (opening balance: $49,602.52 (Dr)):

• debit interest of $587.58 was charged, leading to a debit balance of $50,190.10;

• an account servicing fee of $12 was charged, leading to a debit balance of $50,202.10.

On 16 July 2013 a transfer of $181.50 (being ‘from Bendigo Bank MBIC – Invoice 0916’) was credited to the account, leading to a debit balance of $50,020.60. On 22 July 2013 cheque number 001496 for $165 was presented to ANZ and caused the balance of the account to move from $50,020.60 (Dr) to $50,185.60 (Dr). On 23 July 2013, an Honour Fee of $37.70, being Exception Fee 72, was charged, leading to a closing balance of $50,223.30 (Dr). A deposit on 24 July 2013 of $12,907 caused the balance of the account to reduce below the overdraft limit to $37,316.30.



• cheque presentation, leading to a debit balance of $50,185.60

Shadow limit – Batch Excess Shadow Limit (for cheque transaction): $1,000 in excess of an overdraft limit of $49,999.

172

ANNEXURE 2 – RELEVANT CONTRACTUAL TERMS Terms defined in the Reasons for Decision have been adopted in this Annexure

PRE-DECEMBER 2009 (1) SAVING ACCOUNT 156

1 The Signature Card relevantly provided: I/We agree to be bound by the terms and conditions for the account types which are opened in my/our names, and which are noted on this card, including the terms dealing with the disclosure of information. I/We authorise the nominated signatories to act fully and effectively in all dealings with ANZ regarding the operation of the account as set out in the terms. I/We acknowledge receipt of all booklets containing terms and conditions for each account and, if the Code of Banking Practice applies, general descriptive information.

2 The August 2008 Terms and Conditions relevantly provided:

(1) cl 2.3, headed “Cheques”, under the sub-heading “what if the cheque is dishonoured?”, stated that “ANZ may charge you a dishonour fee”;

(2) cl 2.5, headed ‘Withdrawing or transferring money’, stated that “[u]nless otherwise noted, you may withdraw money from your account (provided your account contains sufficient funds)” and then set out various methods by which withdrawals could be made;

(3) cl 2.6, headed “Stopping or altering payments for Direct Debits and Periodical Payments”, stated “[a] Periodical Payment is a debit from your ANZ account, which you instruct ANZ to make to the account of another person or business”;

(4) cl 2.7, headed “Crediting of withdrawals and deposits”, stated “[a] Periodical Payment Non-Payment Fee is charged if you have authorised a Periodical Payment that is not made because there are insufficient cleared funds in your account”;

(5) cl 2.9, headed “Changes to Fees and Charges, Interest Rates and these Terms and Conditions”, stated that ANZ could make certain changes to Mr Paciocco’s account, including by introducing a new fee, by increasing an existing fee or charge, or by changing “any other term or condition”. The clause required ANZ to give a minimum of 30 days’ notice to Mr Paciocco, either in writing or by press advertisement, of an increase to an existing fee;

(6) cl 2.12, headed “Provision of Credit”, stated: ANZ does not agree to provide any credit in respect of your account without prior written agreement. Depending on your account type, credit can be provided through an ANZ Equity Manager facility, an Overdraft facility or an ANZ Assured facility. It is a condition of all ANZ accounts that you must not overdraw your account without prior arrangements being made and agreed with ANZ. … If a debit would overdraw your account, ANZ may, in its discretion, allow the debit on the following terms: • interest will be charged on the overdrawn amount at the ANZ Retail Index Rate

plus a margin (refer to ‘ANZ Personal Banking Account Fees and Charges’ booklet for details);

• an Honour Fee may be charged for ANZ agreeing to honour the transaction which resulted in the overdrawn amount (refer to ‘ANZ Personal Banking Account Fees and Charges’ booklet for details);

• the overdrawn amount, any interest on that amount and the Honour Fee will be debited to your account; and

• you must repay the overdrawn amount and pay any accrued interest on that amount and the Honour Fee within seven days of the overdrawn amount being

173

debited to your account. You should inform ANZ as soon as possible if you are in financial difficulty.

(7) in cll 4.2 and 4.3, ANZ had the right to block access to a customer’s account, or to combine the balances of two or more of a customer’s accounts, and ANZ had a discretion to “close an account due to unsatisfactory conduct or for any other reason it considers appropriate”;

(8) Section 5, headed “Bank Fees and Charges”, stated: All ANZ accounts are subject to specific account related fees and charges. Other general fees and charges may also apply to your account for other services or account activity. ANZ offers fee free transaction banking on some accounts under certain conditions. ANZ may also waive fees under certain conditions. If ANZ fails to collect a fee to which it is entitled, ANZ has not waived its right to collect the fee for future transactions of the same nature. For information about: • specific account fees and charges (including the types of transactions you can

make, monthly transaction quotas and specific fee amounts); • fee exemptions; and • fee concession criteria Please refer to the ‘ANZ Personal Banking Account Fees and Charges’ booklet.

(9) Section 8, headed “Electronic Banking Conditions of Use”, was divided into sections. Under the section headed “Processing instructions – general”, it stated:

The account holder authorises ANZ to act on the instructions you enter into electronic equipment. … ANZ may delay acting on or may ask you for further information before acting on an instruction. Where ANZ has instructions for more than one payment from your account(s), ANZ will determine the order of priority in which payments are made. …

(10) A further section headed “Cancellation of cards or electronic access” stated: ANZ may cancel any card, [Customer Registration Number] or electronic access: • without prior notice if:

ANZ believes that use of the card or electronic access may cause loss to the account holder or to ANZ;

the account is an inactive account; all the accounts which the card may access have been closed; the account has been overdrawn, or you have exceeded your agreed credit

limit; or • on giving you not less than three months written notice. … The account holder may cancel a card at any time by sending ANZ a written request or by calling ANZ on 13 13 14 … ANZ may require written confirmation.

(11) A further section headed “Withdrawal of electronic access” stated: ANZ may withdraw your electronic access to accounts (including by BPAY) without prior notice if: • electronic equipment malfunctions or is otherwise unavailable for use; • a merchant refuses to accept your card; • any one of the accounts is overdrawn or will become overdrawn, or is otherwise

considered out of order by ANZ; • ANZ believes your access to accounts through electronic equipment may cause

loss to the account holder or to ANZ; • ANZ believes that the quality or security of your electronic access process or

ANZ’s systems may have been compromised;

174

• all the accounts which you may access using ANZ Phone Banking or ANZ Internet Banking have been closed or are inactive or the account you have nominated for Mobile Phone Banking fees and charges to be charged to is closed; or

• ANZ suspects you of being fraudulent or engaging in inappropriate behaviour unless this is prohibited by law.

3 The August 2008 Fees and Charges Booklet relevantly provided: Direct Debit or Direct Credit Free An arrangement you make with a third party to debit or credit your account directly.

A Dishonour Fee may apply if a payment is dishonoured Note: ANZ does not charge for providing this service, however the third party may charge a fee. Dishonour Fee

Charged to your account on the day of the dishonour, when any payment on your account (cheque or direct debit) is dishonoured due to lack of cleared funds in your account. $35

Dishonour Fee – ANZ Access Basic account $10 Dishonour Fee – ANZ Access Limited account $0

Honour Fee Payable on each occasion that ANZ honours a drawing where sufficient

cleared funds are not available in the account or when the credit limit on your account is exceeded. $35

… The Honour Fee is payable on the date of the excess and drawings include those made at a branch, by cheque, or electronic banking. Electronic banking includes Internet, Phone, EFTPOS, Periodical Payments, Direct Debits and ATMs. … Overdrawn Account Interest Overdrawn Account (accounts without a credit limit)

ANZ Retail Index Rate plus a margin of 8.5% per annum** The ANZ Retail Index Rate is published weekly in the Australian Financial Review and other major newspapers.

Periodical Payments …

Non-payment fee $35 Non-payment fee – ANZ Access Basic account $10 Non-payment fee – ANZ Access Limited account $0

(2) CARD ACCOUNTS 9522 AND 9629

4 The Letter of Offer dated 16 June 2006 relevantly provided: Minimum Repayment Each month you are required to pay: • the greater of $10 or 2% of the monthly Closing Balance shown on your statement of

account, rounded up to the nearest dollar • or, if the Closing Balance of your statement of account is less than $10, the full closing

balance by the Due Date shown on that statement of account. In addition you will need to pay any Amount Due Immediately on receipt of your statement of account. Credit Fees and Charges …

175

Late Payment Fee: A fee of $35 will be charged to your credit card account if the “Monthly Payment” plus any “Amount Due Immediately” shown on the statement of account is not paid within 28 days of the end of the “Statement Period” shown on that statement. Overlimit Fee: A fee of $35 will be charged to your credit card account at the end of the “Statement Period” shown on the statement of account if the balance of the account exceeds the “Credit Limit” during that statement period. Charged at a maximum of once per statement period. Under the contract the annual percentage rate, the minimum repayment, the interest free period and the credit fees and charges may be changed by ANZ without your consent. New fees and charges may also be introduced by ANZ without your consent… You will be notified of any change in accordance with Condition 33 of the ANZ Credit Card Conditions of Use. … This document does not contain all the pre-contractual information required to be given to you. More pre-contractual information can be found in the Credit Card Conditions of Use enclosed with this letter. The Credit Card Conditions of Use booklet outlines the rights and obligations you and the Bank must meet when operating your account. …

5 The September 2006 Conditions of Use relevantly provided:

(1) ANZ would (subject to certain limited exceptions) mail a statement of account to the account holder each month: cl 12;

(2) the statement would detail all amounts processed to or from the credit card account during the statement period (including any refunds or payments made as well as any fees and charges incurred on the credit card account): cl 13;

(3) in cl 14, that: Making payments to your credit card account (14) Repayment obligations The statement of account shows how much the account holder must pay to ANZ and when payment is due. (14.1) Amounts payable immediately The greater of: (i) overlimit amounts; and (ii) overdue amounts will be shown on statements of account as being payable immediately. (14.2) Amounts payable by the ‘DUE DATE’ (a) The account holder must make the ‘Minimum Monthly Payment’ shown on

each statement of account by the ‘DUE DATE’ shown on that statement of account. Additional payments can also be made towards the ‘Closing Balance’ shown on the statement of account.

(b) [This clause set out how the ‘Minimum Monthly Payment’ would be calculated]

(c) For all types of Gold credit card accounts, ANZ First (Low Interest option), ANZ Low Rate MasterCard, ANZ Low Interest MasterCard credit card accounts, the ‘DUE DATE’ is 25 days from the end of the statement period. For all other credit card accounts, the ‘DUE DATE’ is 14 days from the end of the statement period. If the ‘DUE DATE’ would fall on a day that is not an ANZ business day, the ‘DUE DATE’ will be the next ANZ business day.

(4) in the Introduction, under the heading Meanings of words: ‘Overdue amount’ means any ‘Minimum Monthly Payment’ that remains unpaid from previous statements of account; ‘overlimit amount’ means the amount by which, at any time, the outstanding balance of the credit card account exceeds the approved credit limit.

(5) how payments could be made to a credit card account: cl 15;

176

(6) in cl 20, how interest was calculated, including that:

1. no interest was payable on purchases, where the full closing balance of the account was paid by the due date; if it was not paid by the due date, the interest would be charged from the date of each purchase; and

2. interest was payable on cash advances from the date of the cash advance,

and in each case the interest would be debited to the account on the closing date of the statement period;

(7) in cl 22, under the heading “Fees and Charges” and the sub-heading “Bank fees and charges”, that:

(a) ANZ reserves the right to charge the credit card account with fees and charges for the provision and operation of the credit card account. The fees and charges applicable to the credit card account are those shown in the Letter of Offer and in the ANZ Personal Banking Fees and Charges booklets, as varied from time to time.

(b) … (c) ANZ is also irrevocably authorised to debit any interest, fees or change

[sic] applicable to the credit card account. (d) The monthly statement of account will detail all fees and charges applied to

the credit card account during the relevant statement period. (8) in cl 29, headed “Default”, that:

(a) The account holder is in default under the credit card contract if you have not met any of your obligations under this credit card contract. If the account holder is in default under the credit card contract, or if ANZ believes on reasonable grounds that you induced it to enter into the credit card contract by fraudulent misrepresentation, the outstanding balance including the outstanding balance on any Promotional Plans on the credit card account will, at the option of ANZ, become immediately due and payable to the ANZ and the credit card(s) relating to this credit card contract will be cancelled, by ANZ giving the account holder notice in accordance with any applicable law.

(b) … (c) Any reasonable amount reasonably incurred or expended by ANZ in

exercising its rights in relation to the credit card account arising from any default (including expenses incurred by the use of ANZ’s staff and facilities) are enforcement expenses and become immediately payable by the account holder. ANZ may debit the credit card account for such amounts without notice.

(d) Upon payment to ANZ, in accordance with this condition, of all amounts owing on the credit card account, the agreement governing the operation of the credit card account will be terminated without the need for any further notice.

(9) in cl 30 headed “Cancellation by ANZ”: (a) … (b) ANZ reserves the right to cancel a credit card or refuse authorisation of

further transactions on any credit card account at any time: (i) without prior notice if:

(A) ANZ believes that use of the credit card or the credit card account may cause loss to you or to ANZ (for example, if you are in default under the credit card contract or under the terms and conditions applicable to another credit facility provided by ANZ to you);

(B) The credit card account is an inactive account;

177

(C) The credit limit has been exceeded or a repayment is overdue (Note that ANZ may elect not to cancel a credit card or refuse authorisation of a transaction for these reasons but the fact that ANZ has elected not to do so on one or more previous occasions does not stop ANZ from taking these actions);

(D) In the reasonable view of ANZ you have tampered with, misused or allowed any other person to use the chip on your credit card; or

(ii) upon giving you not less than three months written notice. If the credit card account is closed, all credit cards issued in relation to that credit card account will also be cancelled. (c) … (d) ANZ will not cancel any individual credit card(s) without good reason. ANZ

reserves the right to cancel any credit card at any time without prior notice if: (i) ANZ believes that use of the credit card may cause loss to you or to

ANZ; or (ii) the credit card account has been closed.

(10) in cl 31 headed “Cancellation by you”, it stated: (a) The account holder may close the credit card account at any time by making

a telephone request to ANZ for closure of the credit card account. If the credit card account is closed, all credit cards issued in relation to that credit card account will also be cancelled.

(11) in cl 33, that ANZ could, at any time, “change any term of the credit card contract by giving the account holder notice”, including the applicable interest rate(s), the way in which interest is calculated or applied, the amount, frequency, time for payment of or the method of calculation of repayments, increasing the amount of a credit fee or charge or changing the frequency or time for payment of a credit fee or charge, or introducing a new credit fee or charge;

(12) ANZ could combine the balances of two or more of a customer’s accounts: cl 40; and

(13) Part B, under the heading “Electronic Banking Conditions of Use”, contained terms to the same effect as those set out in [2(9), 2(10) and 2(11)] above.

6 The August 2006 Fees and Charges Booklet relevantly provided:

Late Payment Fee $35 Charged to ANZ Low Rate MasterCard … if the “Monthly Payment” plus

any “Amount Due Immediately” shown on the statement of account is not paid within 28 days of the end of the “Statement Period” shown on that statement.

7 The Letter of Offer dated 24 July 2009 relevantly provided: Minimum Repayment Each month you are required to pay: • the greater of $10 or 2% of the monthly ‘Closing Balance’ shown on your Statement of

Account, rounded up to the nearest dollar • or, if the ‘Closing Balance’ of your Statement of Account is less than $10, the full

‘Closing Balance’ by the Due Date shown on that Statement of Account. … Amount Due Immediately If an Amount Due Immediately appears on your monthly Statement of Account, you will need

178

to pay this amount in full as soon as you receive your statement. This Amount Due Immediately is payable in addition to the Monthly Minimum Repayment.

Credit Fees and Charges … Late Payment Fee A fee of $35* will be charged to your credit card account if the “Monthly Payment” plus any “Amount Due Immediately” shown on the statement of account is not paid within 28 days of the end of the “Statement Period” shown on that statement. * A reduced fee of $10 will apply if you hold an ANZ Access Basic Account. Overlimit Fee A fee of $35* will be charged to your credit card account at the end of the “Statement Period” shown on the statement of account if the balance of the account exceeds the “Credit Limit”# during that statement period. Charged at a maximum of once per statement period. * A reduced fee of $10 will apply if you hold an ANZ Access Basic Account. # Ask us how you can avoid going over your Credit Limit by opting to have ANZ

decline transactions (in most cases) that will take you over your limit. Pre-Contractual Information Under the contract the annual percentage rate, the minimum repayment, the interest free period and the credit fees and charges may be changed by ANZ without your consent. New fees and charges may also be introduced by ANZ without your consent… You will be notified of any change in accordance with Condition 33 of the ANZ Credit Card Conditions of Use.

8 The July 2009 Conditions of Use contained materially the same terms as the September 2006 Conditions of Use (see [5] above) except for the following matters.

(1) cl 2 headed “The Credit Limit”, stated: (a) Your credit limit is set out in the Letter of Offer and is for the credit card


(b) You must not exceed the credit limit unless ANZ has consented in writing or ANZ otherwise authorises the transaction which results in the account holder’s outstanding balance exceeding the credit limit. By authorising a transaction which results in the account holder’s outstanding balance exceeding the credit limit, ANZ is not increasing the account holder’s credit limit. If you exceed your credit limit, you must pay the amount by which the outstanding balance exceeds the credit limit immediately.

(c) Any withdrawal, transfer or payment from the credit card account will be made firstly from any positive (Cr) balance and secondly from any available credit in the credit card account.

(2) cl 30, headed “Cancellation by ANZ” (which differed from that in the September 2006 Conditions of Use (see [5] above)), stated:

(a) … (b) ANZ reserves the right to cancel a credit card at any time without prior

notice and will provide notice as soon as practicable after the credit card is cancelled. If the credit card account is closed, all credit cards issued in relation to that credit card account will also be cancelled.

(c) … (d) Examples of when ANZ may cancel a credit card include, without limitation,

where a credit card has not been activated within 6 months of the date of the Letter of Offer relating to that credit card or where ANZ believes the use

179

of the credit card account will cause loss to you or ANZ. This is not an exhaustive list of when ANZ may cancel a credit card and is a guide only.

(3) Part B, headed “Electronic Banking Conditions of Use” (which differed from that in the September 2006 Conditions of Use (see [5(12)] above)), stated that:

Cancellation of Cards or Electronic Access ANZ may cancel any card, [Customer Registration Number] or electronic access at any time without prior notice as set out in Clause 30(b). … The account holder may cancel a card at any time by sending ANZ a written request or by calling ANZ on the relevant number listed at the front of this booklet.

9 The July 2009 Fees and Charges Booklet relevantly provided: Overlimit Fee $35 Charged at the end of the “Statement Period” shown on the statement of account if

the balance of the account exceeds the “Credit Limit” during that statement period (excluding ANZ Visa PAYCARD / ANZ Rewards Visa PAYCARD accounts).

Charged at a maximum of once per “Statement Period” (Emphasis added in bold)

POST-DECEMBER 2009

(1) CARD ACCOUNTS 9522 AND 9629

10 The 24 July 2009 Letter of Offer: see [7] above.

11 The December 2009 Conditions of Use contained materially the same terms as those set out at [5] and [8] above.

12 The December 2009 Fees and Charges Booklet relevantly provided: Late Payment Fee $20 Charged to your credit card account if the “Minimum Monthly Payment” plus any

amount “Payable Immediately” shown on the statement of account is not paid by the “Due Date” shown on that statement.

No Late Payment Fee will apply if you hold an ANZ Access Basic Account. Charged to ANZ Visa PAYCARD and ANZ Rewards Visa PAYCARD accounts if the

“Minimum Monthly Payment” plus any amount “Payable Immediately” shown on the statement of account is not paid in full by the “Due Date” shown on that statement.

Overlimit Fee $20 Charged to your credit card account at the end of the “Statement Period” shown on

the statement of account if we agree to provide an Informal Overlimit amount during that statement period. The Overlimit Fee is charged at a maximum of once per statement period. (Refer to the ANZ Credit Cards Conditions of Use for information about Informal Overlimit amounts).

Ask us how you can avoid going over your credit limit by opting to have ANZ decline transactions (in most cases) that will take you over your credit limit. (Refer to the ANZ Credit Cards Conditions of Use for more information).

No Overlimit Fee will apply if you hold an ANZ Access Basic Account. This fee does not apply to ANZ Visa PAYCARD and ANZ Rewards Visa PAYCARD

accounts. 13 The March 2010 Conditions of Use contained materially the same terms as those set out at [5] and

[8] above except for [8(a)] above which instead provided in cl 2: (2) The Credit Limit (a) Your credit limit is set out in the Letter of Offer and is for the credit card account. If

ANZ issues more than one credit card for use on your credit card account no separate limit applies for each credit card. The account holder can ask ANZ to

180

increase or decrease the credit limit at any time. ANZ is not required to agree to any request to increase the credit limit. ANZ is not required to agree to any request to decrease the credit limit if the decrease would result in the outstanding balance exceeding the credit limit.

(b) From time to time, there may be a debit made to your credit card account which, if processed, would temporarily result in the outstanding balance exceeding your credit limit. ANZ has an Informal Overlimit service to help you in these circumstances.

(c) When a debit is initiated which, if processed, would result in the outstanding balance temporarily exceeding your credit limit, you make a request for an Informal Overlimit amount. ANZ will consider your request for an Informal Overlimit amount and, if both the debit and the account holder satisfy ANZ’s credit criteria for Informal Overlimit amounts, ANZ will allow the debit to be processed as an Informal Overlimit amount, on the following terms: • interest will be charged on the Informal Overlimit amount at the applicable

interest rate for purchases, cash advances and other payments (see Condition (19));

• an Overlimit Fee will be charged (refer to the Letter of Offer for details); • the Informal Overlimit amount, any interest on that amount and any Overlimit

Fees will be debited to your credit card account; and • you must repay the Informal Overlimit amount on the earlier of:

- the time shown for payment of ‘Overdue/Overlimit’ amount on the next statement of account after the Informal Overlimit amount is debited to your credit card account; and

- the day that is 60 days after the day on which the Informal Overlimit amount is debited to your credit card account.

(d) By processing a debit as an Informal Overlimit amount, ANZ is not increasing the account holder’s credit limit.

(e) Any withdrawal, transfer or payment from the credit card account will be made firstly from any positive (Cr) balance and secondly from any available credit in the credit card account. An Informal Overlimit amount will only be provided if there is no available credit in the credit card account and both the debit and the account holder satisfy ANZ’s criteria for Informal Overlimit amounts.

(f) If you want to avoid exceeding your credit limit, you should ask ANZ: - how to have ANZ decline transactions you initiate that will take you over

your credit limit – please note that this service is not available for all transaction types (for example, it is not available for a transaction that is not electronically authorised such as a purchase that is manually debited to your credit card account if EFTPOS is not available). Please ask for our Overlimit Credit Card Opt Out Form;

- about ways in which you can monitor the balance of your credit card account; or

- if you have longer-term, ongoing borrowing needs, how to apply for an increase to the account holder’s credit limit or for information about other products that may suit your needs.

14 The ‘ANZ Credit Cards Conditions of Use’ dated June 2010 (and all subsequent versions) included a preamble under the heading “Important things to know about using your ANZ credit card” which included:

Fees

We tell you which fees can apply to your credit card account in the Letter of Offer that we sent to you, and you can also find these in the ANZ Personal Banking Account Fees and Charges booklet which is available on anz.com or at any ANZ branch.

Some of the key fees you need to know are below:

…

181

Fees that apply when you do something, or request us to do something for you

We provide you with services on your credit card account and sometimes there are fees for doing so. The most common service fees are:

• …

• Late Payment Fee

• Overlimit Fee (not applicable to ANZ Visa PAYCARD and ANZ Rewards Visa PAYCARD accounts, or if you hold an ANZ Access Basic Account)

You can avoid some of these fees:

You can avoid a Late Payment Fee by paying the Minimum Monthly Payment shown on your statement by the due date

• We have convenient services available to you that make it easy to make your minimum payment on time such as CardPay Direct – please ask us for details.

You can avoid an Overlimit Fee by staying within your approved credit limit

• We tell you what your credit limit is on your Letter of Offer that we sent you, and it’s also shown on your monthly account statement

• Sometimes you might have a transaction that temporarily causes you to exceed your credit limit. In this situation, we want to help you avoid embarrassing moments such as being declined while purchasing your groceries. Where you and the transaction which would exceed your credit limit satisfy our criteria, we will provide you with a convenient service to cover your payment needs – we call this service an Informal Overlimit facility. An Overlimit Fee will be charged for this service.

• You can also ask us to decline certain transactions so that you don’t exceed your credit limit. Please see clause 2 in this booklet for further information.

(Emphasis added in bold.)

15 The ‘ANZ Personal Banking Account Fees and Charges’ dated June 2012 relevantly provided: Overlimit Fee $20 A. Charged to your credit card account at the end of the “Statement Period” shown on the

statement of account where: • any type of debit is initiated on your credit card account that would cause you to exceed

your credit limit during the Statement Period; and • we agree to provide you with an Informal Overlimit amount to allow this debit to be

charged to your credit card account; and • we determine that:

(1) Your account was opened before 18 June 2012 and either: a. you have not asked us to decline transactions (in most cases) that will take

you over the credit limit; or b. you previously asked us to decline the transactions referred to in (a), but

have since asked us to approve these transactions where they meet ANZ’s criteria by consenting to be charged an Overlimit Fee; or

(2) Your account was opened on or after 18 June 2012 and you have consented to be charged an Overlimit Fee.

• The Overlimit Fee (where payable) is charged at a maximum of once per statement period. Please refer to the ANZ Credit Cards Conditions of Use for information about Informal Overlimit amounts.

B. You will not be charged an Overlimit Fee where ANZ provides you with an Informal Overlimit amount during the Statement Period and: - you hold an ANZ Access Basic Account; or - we determine that:

(1) Your account was opened before 18 June 2012 and you have asked us to

182

decline transactions (in most cases) that will take you over the credit limit; or

(2) Your account was opened on or after 18 June 2012 and at the time the Informal Overlimit amount is provided you have not consented, or you have withdrawn your consent to being charged an Overlimit Fee (unless you are charged an Overlimit Fee in accordance with paragraph A in respect of an earlier Informal Overlimit amount).

(2) BUSINESS CONTRACT

16 The Signature Card relevantly provided: I/We agree to be bound by the terms and conditions for the account types which are opened in my/our names, and which are noted on this card, including the terms dealing with the disclosure of information. I/We authorise the nominated signatories to act fully and effectively in all dealings with ANZ regarding the operation of the account as set out in the terms. I/We acknowledge receipt of all booklets containing terms and conditions for each account.

17 The Account Authority contained, inter alia, a purported resolution of SDG as follows: That a bank account for the company be opened with [ANZ] at its Lower Templestowe branch, and that [any one to sign] be authorised to: • Operate and enter into agreements to operate on the account(s) in any way permitted by

ANZ including transactions by electronic, mechanical and other means. • Sign cheques; draw, endorse, accept and discount bills of exchange and drafts; make,

endorse and discount promissory notes. • Overdraw or increase the overdraft on the account. • Sign authorities for periodical payments; place money on term deposit or other non-

current deposit and deal with and receive payment for such deposits, including interest, and deal with term deposit receipts and certificates of deposit.

• Give receipts for shipping documents and the like and sign requisitions for letters of credit.

• Sign and make withdrawals in respect of any deposit or current account. • Generally act fully and effectually in all dealings, matters and transactions between the

company and ANZ. 18 The December 2009 Terms and Conditions relevantly provided:

(1) ANZ could combine the balances of two or more of a customer’s accounts.

(2) ANZ could in its discretion close an account “due to unsatisfactory conduct or for any other reason it considers appropriate”.

(3) ANZ could change the terms and conditions by, inter alia, introducing a new fee or charge, increasing an existing fee or charge, or changing any other term or condition.

(4) that a cheque may, at ANZ’s discretion, be dishonoured or payment refused where, inter alia, there are insufficient funds in the account of the drawer, and that “ANZ may charge a dishonour fee”.

(5) in a section headed “Informal Overdraft facility”, it stated: For the purposes of this clause the following definitions apply: ‘Informal Overdraft' means an amount advanced to you under the Informal Overdraft facility. ‘Informal Overdraft facility’ means the informal short-term credit facility ANZ may provide to you pursuant to this clause if a debit to your account (excluding a periodical payment) would, if processed, result in either: your account becoming overdrawn; or the approved limit on your account being exceeded.

183

When any debit (excluding a periodical payment) is initiated which, if processed, would result in either: your account becoming overdrawn; or the approved limit on your account being exceeded, you are deemed to request an Informal Overdraft. For accounts other than ANZ Equity Manager in a Company Name ANZ will consider your request and assess your eligibility for an Informal Overdraft based on ANZ’s credit criteria. You will be charged an Informal Overdraft Assessment Fee for this service in the circumstances described below. If you satisfy ANZ’s credit criteria for an Informal Overdraft facility, ANZ will agree to your request by allowing the debit to be processed as an Informal Overdraft, on the following terms: If the balance of your Informal Overdraft facility exceeds $50 at the time of

your request, or will exceed $50 once the debit requested is processed, you will be charged an Informal Overdraft Assessment Fee on the day on which the debit is processed (or if that day is not a business day, on the next business day). The Informal Overdraft Assessment Fee (referred to in your bank statements and in the ‘ANZ Business Banking Transaction Accounts Fees and Charges’ booklet as an ‘Honour Fee’) is payable immediately.

Interest will be charged on the sum of the Informal Overdraft and any fees and charges debited to the account at the ANZ Retail Index Rate plus a margin …

The Informal Overdraft, any Informal Overdraft Assessment Fee and any interest on both of those amounts will be debited to your account; and

you must repay each of those amounts by the earlier to occur of either: • 7 days of the Informal Overdraft being debited to your account; or • ANZ demanding repayment. Demand for payment may be made in your next

statement of account or by letter to you. If you do not satisfy ANZ’s credit criteria for an Informal Overdraft, ANZ will decline your request and will not allow the debit to be processed. You will be charged an Informal Overdraft Assessment Fee (referred to in your bank statements and in the ‘ANZ Business Banking Transaction Accounts Fees and Charges’ booklet as an ‘Outward Dishonour Fee’) and this fee is payable immediately. Other than amounts debited to your account in accordance with this clause,

ANZ does not agree to provide any credit in respect of your account without prior written agreement.

You should inform ANZ as soon as possible if you are in financial difficulty. (6) Under the heading “Overdraft Facility”, it stated:

If you require credit, an ANZ Business Overdraft Facility can be arranged on your account … All applications are subject to ANZ’s normal credit approval criteria.

(7) under the heading ‘Electronic Banking Conditions of Use’, it stated: 15. Cancellation of Cards, Security Devices or Electronic Access (a) ANZ may cancel or limit any card, Security Device, [Customer Registration

Number] or electronic access: • Without prior notice if:

• ANZ believes that use of the card, Security Device or electronic access may cause loss to the Account Holder or to ANZ;

• The Account is an inactive account; • All the Accounts which the card may access or the Security Device

relates to have been closed; • The Account has been overdrawn, or you have exceeded your

agreed credit limit (other than by use of the Informal Overdraft

184

facility); • The account or your use of the account is otherwise out of order;

or • On giving you not less than three months written notice.

… (c) The Account Holder may cancel a card at any time by sending ANZ a

written request or by calling ANZ on the relevant number listed at the back of this booklet.

16. Withdrawal of Electronic Access (a) ANZ may withdraw your electronic access to Accounts (including by BPAY)

without prior notice if: • Electronic equipment malfunctions or is otherwise unavailable for use; • A merchant refuses to accept your card; • Any one of the Accounts is overdrawn or will become overdrawn (other

than by use of the Informal Overdraft facility); • Any one of the Accounts or your use of an account is otherwise

considered out of order by ANZ; • ANZ believes your access to Accounts through electronic equipment

may cause loss to the Account Holder or to ANZ; • ANZ believes that the quality or security of your electronic access

process or ANZ’s systems may have been compromised; • All the Accounts which you may access using ANZ Phone Banking,

ANZ Internet Banking or ANZ Internet Banking for Business have been closed or are inactive or the account you have nominated for ANZ Mobile Phone Banking fees and charges to be charged to is closed; or

• ANZ suspects you of being fraudulent or engaging in inappropriate behaviour; unless this is prohibited by law.

19 The December 2009 Business Fees and Charges Booklet relevantly provided: Honour Fee $37.70


Outward Dishonour Fee $37.70 per dishonour

Charged for considering a request for an Informal Overdraft where you do not satisfy ANZ’s credit criteria for an Informal Overdraft.

It also contained a term specifying the ‘Informal Overdraft Interest Rate’ as the ‘Overdraft Interest Rate’ plus 4% p.a.

20 The Letter of Offer dated 28 April 2011 relevantly provided: The Facility Limit is the maximum amount of credit (inclusive of any interest and fees debited to your account) that you may incur. If you exceed the Facility Limit and ANZ offers you an Informal Overdraft Facility, you will be charged the Overdraft Interest Rate plus a further 4% p.a. on the balance of your Informal Overdraft Facility.

…

A fee is charged if the balance of your Overdraft facility exceeds $50 or will exceed $50 after a requested debit has been processed. This fee is for considering a request for an Informal Overdraft where you satisfy ANZ’s credit criteria.

21 The Letter of Offer dated 29 November 2011 relevantly provided:

(1) the facility limit on SDG’s overdraft facility was $49,999;

185

(2) under the heading ‘Informal Overdraft Interest Rate’: The Facility Limit is the maximum amount of credit (inclusive of any interest and fees debited to your account) that you may incur unless ANZ agrees to advance you any further amount under an Informal Overdraft facility. If ANZ provides you with an Informal Overdraft facility, you will be charged the Interest Rate plus a further 4.00% pa on the sum of the Informal Overdraft and any applicable Informal Overdraft Assessment Fee…

(3) an Honour Fee of $37.70 is payable “if ANZ pays drawings on your account in excess of the Facility Limit. This fee is payable on the date of the excess drawing”; and

(4) the facility was to be secured by a guarantee and indemnity given by Mr Paciocco.

22 The ‘Finance Conditions of Use – ANZ Business Banking’ dated August 2011 relevantly provided:

(1) under the heading “Request for Informal Overdraft facility”, provisions to the same effect as those set out in [18(5)] above;

(2) interest would be charged on amounts not paid when due (an ‘overdue amount’): cl 11, and: You agree to pay ANZ, on demand, in addition to the interest payable under sub-clause (a), a fee determined by ANZ so that the interest and the fee will compensate ANZ for the Costs ANZ incurs or loss ANZ suffers as a result of an overdue amount.

(3) it was a review event if “ANZ has dishonoured or refused payment of cheque(s) issued on any of your accounts because there are insufficient funds”: cl 13(h)(v);

(4) ANZ could change the terms and conditions by, inter alia, introducing a new fee or charge, changing an existing fee or charge, or changing any other term or condition: cl 14;

(5) in cl 35, headed “Consolidation of Accounts”, that: ANZ may at any time combine, consolidate, merge or apply any credit balance in any of your accounts, or any amount available to ANZ by way of set-off, lien or counterclaim, towards payment of money which is then, or will become, due and payable by you to ANZ under any Transaction Document. If ANZ does any of these things, ANZ will tell you in writing. ANZ can do any of these things despite any previous agreement to the contrary. You authorise ANZ to do anything in your name which is necessary for ANZ to be able to do any of these things. ANZ’s rights under this clause are in addition to any other rights it has at law or under any other agreement.

(6) that a cheque may, at ANZ’s discretion, be dishonoured or payment refused where, inter alia, there are insufficient funds in the account of the drawer, and that “ANZ may charge an Informal Overdraft Assessment Fee (referred to in your bank statements and ANZ Business Banking Finance Fees and Charges booklet as an Outward Dishonour Fee)”: cl 39; and

(7) under the heading ‘Electronic Banking Conditions of Use’, provisions to the same effect as those set out in [18(7)] above.

186

187

Annexure 4 Pre-2008 Exception Fee Discussion Paper dated 24 March 2006 1. The paper stated that within ANZ, at that time, there was a series of actions

recommended to implement pricing changes by which dishonour fees and periodical non-payment fees were reduced from $45 to $35 and honour fees were increased from $29.50 to $35. The first objective identified for the re-pricing was to “improve revenue streams”. Another objective was to improve “alignment between fees and service provided”. There was a “strong rationale for changing existing exception fee levels and policy”. That rationale had the following components:

a. A “pricing rationale” – ANZ noted that only the highest balance savings accounts were profitable, “exception fees revenue aligns well with lower value centiles”, customer research confirmed that “exception fees are not a driver of acquisition choice and rarely a driver of attrition” and “competitor pricing provides headroom for change without being top of market”.

b. Insofar as the changes had a “policy rationale”, it noted that there was no strong rationale for having different online limit policies for cheque and savings customers and existing fee levels were “misaligned” across the personal fees.

c. In relation to “customer and community rationale”, the paper recorded that “[e]xisting differences in honour and dishonour fee levels are hard to justify; changes may reduce the pressure on dishonour fees which are hardest to justify as “no service is provided”. (The substance of this statement was repeated in the 30 June 2006 Exception Fee Discussion Paper).

2. The outcome of customer research was then considered. The conclusion was that honour fees were not a substantial part of acquisition or attrition. In relation to “attrition”, the paper recorded that “very few respondents had even considered changing banks because of honour fees” because “for most customers, honour fees were charged rarely at all” and where they did play a role, “respondents were already dissatisfied with their bank”.

3. The paper also addressed the rationale for the proposed pricing change to a common honour and dishonour fee of $35. The paper stated that it was difficult to justify to customers and regulators why the dishonour fee was higher than the honour fee “given that there is no incremental service provided for dishonour”. Another rationale was said to “provide some cost recovery and incentive for proper account management”.

Exception Fee Discussion Paper dated 30 June 2006 4. The paper stated that by “changing exception fee prices and opening online limits for

new advantage and select savings accounts will reduce losses in otherwise unprofitable balance segments”. In particular, the paper stated that a “fee alignment at $35 result[ed] in an increase in profit in unprofitable accounts”.

5. Exception fees were stated to represent “a significant part of the Transaction Banking” profit and loss. The current level of exception fees was put in context. The paper stated that they totalled $93 million whereas the entire transaction banking earnings before provisions was $208 million and account service fees totalled $50 million.

188

6. The paper further stated that the proposed changes were based on the outcome of customer research. The research confirmed: a. All customers disliked fees but they disliked the dishonour fee more than the

honour fee because of the “lack of perceived service”. b. Customers did not understand or appreciate why the honour fee and dishonour

fee were different in fee amount. c. Customers were looking for better communication in relation to fees and

options and that customers would prefer a buffer of $10. 7. “As laid out in the research [the] results were”:

a. lowering the dishonour fee; b. aligning fees; c. improving communication with customers; and d. reducing basic fees.

8. The conclusion reached was that ANZ could not afford to do all of these things and increase the buffer and still make the changes financially worthwhile so they have chosen to let go the item which customers viewed as a distant third, the buffer.

Exception Fee Briefing Paper dated July 2006 9. The paper stated that exception fees:

a. were to be simplified and made consistent ($35) across other ANZ products. b. were to be reduced to $10 for Access Basic customers to reduce the impact of

these fees on low income earners. 10. The paper further stated that customer communication was to be improved when a fee

is incurred by ANZ writing to customers to explain when these fees are charged and how they can be avoided in the future.

11. The unauthorised overdraft rate was to be aligned with the ANZ Assured overdraft rate, which meant that one interest rate was charged for overdrawing accounts.

12. From late 2006, any new customers opening both cheque and non-cheque accounts may be able to overdraw their account electronically (not applicable to Access Basic and currently only applied to cheque accounts).

May 2007 – Internal Emails 13. The penalty fee debate was discussed internally within ANZ. The emails recorded

that ANZ was aware that the Australian Securities and Investments Commission (ASIC) was focusing on two issues: the legality of the fees, that is, “whether the amount charged is reasonable to protect the legitimate interest of the Bank” and secondly, the “public perception of the amount of the fees is too high”. In an email dated 9 May 2007, an ANZ bank officer recognised that at this time any review of the terms and conditions would not lead to a change in the level of fees and expressed doubts whether this would “ultimately satisfy ASIC and the issue will resurface”. The email recorded that “ASIC is basically giving the industry an opportunity to manage the issue itself”.

189

2008 Australian Securities and Investments Commission (Fair Bank and Credit Card Fees) Amendment Bill 2008 (Bank Fees Bill). 14. On 14 February 2008, the Bank Fees Bill was introduced to the Senate and had its

first and second readings. Its proposed short title was “A Bill for an Act to Amend the Australian Securities and Investments Commission Act 2001 to limit unfair banking and credit card penalty fees, and for related purposes”. The core of the Bill was to prohibit a ‘default charge’ which was not “at or below a genuine pre-estimate of the damage likely to be suffered by the financial service provider resulting from the consumer default” (cl 12FA), and to enable ASIC to determine a valid “default charge” based upon a consideration, inter alia, of “whether the default charge reflects a genuine pre-estimate of the additional administrative costs that might reasonably be expected to result from the consumer default, reduced by costs that are not able to be identified with reasonable precision and an amount that takes account of the ability of the financial service provider to mitigate the loss it suffers resulting from consumer defaults”: cl 12FB(5)(a)).

15. The Bank Fees Bill did not lapse until Parliament was prorogued on 19 July 2010. Through 2008, the Bill was the subject of inquiry by the Senate Standing Committee on Economics, which reported on 16 September 2008.

16. Shortly before the introduction of the Bank Fees Bill, the Australian Bankers Association (ABA) commissioned a review of the Code of Banking Practice. The commencement of the review was publicised in a press release by the ABA on 21 December 2007. Consultation occurred during the review process. ANZ contributed to the review.

February 2008 Personal Banking Account Fees and Charges Booklet 17. ANZ issued the February 2008 Personal Banking Account Fees and Charges Booklet.

Weekly Management Board Meeting of ANZ on 17 March 2008 18. Under the heading “Bob Santamaria” (in house counsel for ANZ), the Minutes of the

weekly management board meeting of ANZ on 17 March 2008 stated “review exception fees for appropriateness to avoid retrospective penalties”.

Exception Fees Updates, Product Development 1 April 2008 19. Paper entitled “Exception Fees Updates – Product Development” prepared.

The introduction explained that the paper was a response to the proposal in the Bank Fees Bill to “limit banking and credit card penalty fees by ensuring that fees are for cost recovery only …”.

20. The introduction to the paper stated:

– “How ANZ Consumer Cards can project manage the potential requirement to change the disclosure of such ‘exception fees’ to ‘service fees’

– Identifies key milestones for the above to occur

– Highlights key considerations for the imitative. ”

21. The suggested approach was to “changing exception fees to service fees”. The paper then listed “key considerations moving [that suggested approach] forward”. One key consideration was whether the terminology change was “sufficient protection against the potential impact?”

190

22. The update also recorded that ANZ’s Legal and Government Regulatory Affairs Department, on the basis of its advice, had advised there was “therefore definite revenue at risk figure”.

Review of the Code of Banking Practice, Issues Paper, August 2008 23. ANZ made a written submission to the Independent Code Reviewer, Jan McClelland

in August 2008 in relation to a review of the Code of Banking. In relation to the Issues Paper Interim Recommendation number 7 – Fees and Charges, ANZ submitted that “Fees, charges and interest, including exception fees, are set by member banks in a highly competitive environment. ANZ believes that exception fees are avoidable and we give our customers the information, products and options they need to avoid them”.

24. ANZ’s submission stated ANZ was continuing to look at new ways to help customers avoid these fees and expected to announce further developments shortly. As such, ANZ believed that fees and charges should not be regulated, particularly in an industry code. ANZ referred to the Commonwealth Government’s June 2008 Green Paper on Financial Services and Credit Regulation which suggested that:

Regulation of bank fees and charges discourages new investment and innovation, increases compliance costs for industry and may actually lead to an increase in prices for consumers. …

25. ANZ further submitted that the Banking and Financial Services Ombudsman’s Terms of Reference stated that it cannot consider the amount of a fee so far as it relates to a policy or practice of a bank. ANZ agreed and believed that the Code of Banking Practice was not the appropriate vehicle for determining the level of fees and charges. ANZ recommended that the market should be allowed to continue to place downward pressure on these fees and charges through innovation and clear and transparent disclosure which would include continuing to update the [Australian Bankers’ Association] Exception Fee fact sheet to ensure customers could compare products across providers with regard to these fees.

26. Attachment A to ANZ’s submission was two Exception Fee policies which ANZ released in August 2007. The policies were said to “outline a series of commitments to [ANZ’s] personal customers”.

27. The first entitled “ANZ Exception Fees Policy Consumer Credit Cards” was said to set out ANZ’s commitment to customers with regard to late payment fees and overlimit fees applicable to ANZ consumer credit cards. The second policy was entitled “ANZ Exception Fees Policy Consumer Transaction and Savings Products”. This policy was for Access Advantage, Access Select, Access Basic, Access Deeming, Progress Saver, Premium Case Management, Prime Cash Management, Home Loan Interest Saver, ANZ One and Equity Manager account and was said to set out ANZ’s commitments in relation to honour fees, dishonour fees and periodical payment non-payment fees that applied to these accounts. Both documents stated it was ANZ’s policy to provide consumers with:

o full disclosure; o keeping fees simple; o helping the consumer avoid fees; and o applying the fees fairly.

191

Confidential Paper, Response to Fee Headwind, 11 August 2008 28. The document was incomplete. The document described the “external environment”

as being one where banks “are asked to set Exception fees limited to costs recovery only”.

29. The response outlined options that ANZ could consider to mitigate the revenue loss from the potential reduction in exception fees such as tightening criteria further on some exception fees including reducing late payment fee ‘grace’ days and reducing the overlimit ‘buffer’.

30. Other options for raising revenue included increasing annual fees, charging monthly fees instead of annual fees on credit cards, increasing retail rates and cash rates on all products, moving from charging on overlimit fee per cycle to per honoured transaction and introducing differential exception fees on different products.

Exception Fees Strategy, September 2008, by Louis Hawke 31. The Executive Summary stated:

* Recent events overseas and in Australia are generating heightened focus and increasing the risk of regulation on bank fees, in particular exception fees.

* Focus on strategy is to source additional income streams to offset the potential loss of exception fee revenue due to regulation.

* Actions to address political concerns and improve customer experience include – new exception fee free account, new ATM warning message and low balance text alerts.

* Strategies to cover revenue gap include – changing the mix of honour and dishonoured transactions, increasing the monthly account service fee.

* Significant component of honour/dishonour fee is at risk.

* Largest threat Senator Fielding Bill – ASIC (Fair Bank and Credit Card Fees) Amendment Bill 2008.

* Corporate Affairs, Legal & Banking Products are monitoring the situation and working together on the strategies.

32. The paper stated that the following initiatives “have been / will be implemented to provide customers with more options to avoid overdrawing their accounts”:

• Exception Fee Free Account (Access Limited) - launched 15 September 2008

o Provides choice to customers who do not wish to overdraw their account

• New ATM warning Message – to be rolled out progressively in March 2009

o New message to allow customers to proceed with or cancel transactions that will overdraw their account

192

o Based on the assumption that 50% of customers will choose not to proceed with the transaction, the revenue impact is a reduction of up to $12 million per annum

• Low Balance Text Alert Messages … 33. ANZ’s short to long term strategies were stated in that document:

Short/Medium Term Strategies * Change Terms and Conditions for transaction accounts

- Honour and dishonour fees to be changed to “service fees” for overdrawn amounts less than $500 and “temporary overdraft fee” for amounts greater than $500. (More than 90% of honour fees charged are for overdrawn amounts of less than $500).

* Switch on Online shadow limits for non cheque Access Accounts

- Expected additional revenue of $20 million per annum (at $35 per item)

- Controlled phased roll out with new ATM warning message

* Change honour/dishonour mix from 70%/30% to 50%/50%

- Expected additional revenue of $18 million per annum (at $35 per item)

* Change the mix of Online/Batch honour transactions (honour more transactions via Online channels and honour less transactions via batch channels)

- Expected additional revenue – to be confirmed.

Long Term Strategies If exception fees were regulated/capped to cost recovery, the approach would be to:

* Increase monthly account service fee ($0.13 for every $ reduction in per item fee applied on all active accounts or $0.25 for every $ reduction if applied on fee paying accounts only).

* Increase proportion of dishonour transactions to over 50%.

* Change exception fee charging methodology

- item based honour fee

- change posting sequence and charge for uncleared funds.

December 2008 – ABA Review Report 34. The ABA Report was published in December 2008: Review of the Code of Banking

Practice, Final Report, December 2008.

35. Chapter 9 dealt with fees and charges. Among other things, the review noted that of particular concern to consumer advocates and regulators were exception fees. Those concerns focused on:

193

a. the charging of exception fees unilaterally and automatically, often in relation to trivial defaults or unintentional errors by consumers and in situations which compounded the problem for people experiencing financial difficulties;

b. the amount charged was disproportionate to the penalised transaction and the cost to the Bank;

c. the lack of assistance provided by Banks to assist customers to avoid exception fees; and

d. the level of exception fees was not covered by the Code.

36. The review noted that while regulators and consumer advocates acknowledged “that banks are entitled to recover costs incurred by them upon default by a customer”, they argued that the code should include reference to the provision of information on exception fees. Express reference was made in the Review to developments in the United Kingdom, which was noted to have “found that fees charged by a Bank in relation to the customer’s overdrawing of their account or overdraft limit were not common law penalties”: Office of Fair Trading v Abbey National Plc [2008] All ER (D) 349, [2008] EWHC 875 (Comm). That decision had been handed down on 24 April 2008. In relation “to the issue of the quantum of exception fees”, the report recommended that “the definition of fees and charges include reference to the reasonable recovery of costs incurred by the Banks when customers default on their repayments, exceed their overdraft limit or are overdrawn on their account”.

22 December 2008 Internal Email 37. The Senior Manager, Product and Project Initiation, of ANZ sent an email to, among

others, the Managing Director, Retail and Business Banking entitled “Fee for service initiative”. The email included statements that:

a. The “fee for service” initiative was an appropriate direction for ANZ moving forward given the “pressure that is mounting on exception fees earned on retail and commercial (small business)”.

b. For the period October 2005-October 2008, over $300 million was earned from late payment and overlimit fees in Consumer Cards. The actual size of the impact across all Consumer and Commercial Businesses was currently being sized.

2009 Fee Review – Project plan and challenges, Product Development January 2009 38. It stated the “Fee for Service” initiative aimed to update the fee name or descriptions

so customers understood why the fees are charged.

Fee for Service Review, Road-show document, January / February 2009 39. In early 2009, ANZ prepared a “Road-show document” entitled “Fee for service

review”. In the introduction and scope section, the document stated:

ANZ is currently reviewing the ‘fees for Service” that are being charged to customers. Part of this review may involve the tailoring of existing fee names or descriptions to more suitable wording to help our customers understand why fees are charged.

194

Presentation to DIRC / PIRC, Fee for Service February 2009 40. Under the heading “Nature of the origins of the proposal, what is the strategic

rationale and what are the desired outcomes”, the document stated “to reduce the risk of disputation proceedings against ANZ” and to reduce the “risk of government or regulatory action against ‘Fees for Service’ charged to customers”.

Fee for Service Scope / Approach prepared by John Papasoulis / Joe Lewis, February 2009 41. This paper, prepared by John Papasoulis and Joe Lewis (who had responsibility for

the Fee for Service Project) recommended to ANZ that the proposal implemented focus initially on “tailoring” fees to the higher risk / value revenue streams given that Consumer Cards and Deposits consisted of $251 million or 76% of fee revenue.

42. The paper recommended a phased introduction of the initiative. In phase 1, the Letter of Offer, Terms and Conditions and other “up-front” collateral changes would be made to introduce the new fee names and descriptions but with “continued reference to old fee names”.

“Penalty Fee Review Project – Feasibility Analysis” prepared by Alicia Hall on 16 February 2009.

43. In the background to the “penalty fee project”, Ms Hall noted:

* The ANZ legal teams are in the process of reviewing all account penalties with the intention that there will be changes made to the penalty fee names and descriptions.

* Penalty fees are currently applied to every ANZ account type, across every business unit and are applicable/visible on multiple platforms. The interdependencies for penalty fees from a technology and business process perspective are substantial as are the volume of fees affected and potentially to be including in the scope of this change.

* Our understanding is that the Service Fees already being charged to accounts are not included in this initiative.

(Emphasis in original).

44. One of the assumptions and considerations was a differentiation between “Penalty Fees” and “Service Fees and other charges not related to Penalty Fees”.

45. Ms Hall listed the Risks. The eighth risk was “Changing Fee names and Descriptions and not addressing the integral intent of the charges may present an ethical challenge to risk and legal teams and hence [ANZ] may face litigation or regulatory issues”.

Presentation to DIRC / PIRC, Fee for Service, Initiative Review, 23 February 2009 46. The description / summary for the meeting stated that:

a. The Fee for Service was directed to “pre-empting likely regulatory change in banks [sic] ability to charge exception fees to customers”;

b. The “[p]rimary benefit is to tailor exception fee name and/or description to protect the existing fee revenue received”.

47. Another version of the same document stated in the description / summary for the meeting that disputation against exception fees was leading to extreme risk that ANZ

195

would suffer severe consequences from any action and that proposed regulatory action against exception fees was regarded as an “almost certain likelihood”.

Fee For Service Steering Committee #1, 12 March 2009 prepared by John Papasoulis and Joe Lewis 48. The key benefit to the initiative was the “risk to current fee revenue generated, which

the ANZ may not be able to charge in the future and be requested to repay retrospectively” and “each day the proposed changes are not made, the future exposure increases - as much as $1 [million] per day”.

52. Consistently with this, further reference is made to the fact that each day the proposed changes are not made, the future exposure increases by as much as $30 million per month.

53. In talking of customers who held both customer and business accounts, the report stated that the phased approach to changing the fees would involve the customer being aware that a variation was being made to a fee that “restates it as a service fee rather than a penalty fee while the business fee with the same name is unchanged as a penalty fee”.

54. The report referred to the risk of media attention including the risk of drawing attention to the activity of new fee names and descriptions with resulting negative media exposure. The report however stated that the “media is relatively quiet on this particular issue at the moment, and hence it is a comparatively good time to make the changes, but potential still exits”.

Minutes of Meeting of Fee for Service Steering Committee on 12 March 2009 49. The minutes recorded that “Penalty Regime risks based on UK experience are still the

focus of this initiative”.

50. External legal advice was to be sought, and an officer (Mr John Papasoulis) was assigned to action the “single referencing of fees” which had been agreed to be utilised. The agreement was that “the ‘old’ fees will be updated to ‘new’ fee names and/or descriptions”.

Fee for Service Steering Committee #2, 28 April 2009, prepared by John Papasoulis, and Joe Lewis 51. A number of versions were in evidence.

52. In Version 1, the “Key Takeaway” was that the “Fee for Service initiative will justify the ‘service element’ of current fees and therefore not limit ability to charge to cost recovery only but cost recovery + amount on top (unknown)”.

53. In Version 2, one of the challenges in meeting a 1 July deadline for implementation of the initiative was described as being “considerable delays have been encountered in receiving the finalised fee name and descriptions”.

54. In Version 4, in discussing the various options of “dual referencing” or “single referencing”, it was noted that the option of “Do nothing” had a “key advantage” in that it “[d]oes not draw attention to penalty fee regime”.

Minutes of Meeting of Fee for Service Steering Committee on 8 May 2009 55. The minutes recorded that it was decided that “the effective date risk could not be

mitigated” and therefore “not to proceed with the variations of fees”.

196

“Penalty Fee Review Project, Technology Status Report” on 18 May 2009 prepared by Mike Lewicki. 56. The Report contained a Project Overview. The “problem” was described as follows:

Fees are currently applied to every ANZ account type, across every business unit and are applicable / visible on multiple platforms. The interdependencies for penalty fees from a technology and business process perspective are substantial as are the volume of fees affected / requiring change.

For instance, account penalties are applied when a savings account in (sic) overdrawn, this fee will be disclosed in the customers terms and conditions …

At this stage it does not appear that the mechanisms for applying the charges will change however as the new names and fee descriptions will need to be applied to all accounts, all penalty fee types, and all changes will need to be considerate of downstream implications including change testing / verification impact which can result in a significant program of work to be managed.”

57. Given this, the report noted there was a current priority of fees: (1) Honour Fee, (2) Late Payment Fee, (3) Overlimit Fee and (4) Dishonour Fee.

Report, Fee For Service Steering Committee # 3, 15 June 2009 58. The Report gave an update on the “initiative” and the status of legal advice received.

It noted the initiative was on hold and unlikely to be reconsidered unless the Commonwealth legislation changed to the Victorian model, or the national implementation timeline increased from 1 January 2010.

59. It noted that Working Groups had been established whose job it was to “scenario plan for likely outcomes of penalty fee regime, to identify initiatives to respond to impacts of incoming legislation.”

Minutes of Meeting of Fee For Service Steering Committee # 3, 15 June 2009 60. At the meeting “Questions [were] raised if there was an opportunity to change CoU’s

[Conditions of Use] and T&Cs [Terms and Conditions] for new accounts (contracts) to edit current fee wording that highlighted the breach/penalty component”. .

July 2009 – Internal correspondence and discussions 61. On 29 July 2009, there was internal bank discussion about exception fees and “what

drove NAB’s decision”. A consideration was “legal view – including amount of margin on cost that can be recouped”.

August 2009 – Internal correspondence and discussions 62. On 3 August 2009, there was internal bank discussion about what level of fee “the

market will settle at” following the decisions of Westpac and St George to cut them across the board to $9.

63. On 10 August 2009, Exception Fees were discussed at the Weekly Management Board meeting.

64. One paper presented to the Board was “ANZ exception fee response – Update” dated 10 August 2009 prepared by Mr Graham Hodges (CEO, Australia Division). The paper reviewed the market position, noted that ANZ’s price response should be driven by a number of key factors including what were “Justifiable fees & structure”. The paper proposed an alternative structure where a daily honour fee was charged on

197

overdrawn accounts which would “encourage rectification of account” and noted that statistically more than half of overdrawn accounts were “corrected” in 5 days or less. The paper recorded that $436m of revenue was at risk, which represented a significant share of fee income for transaction accounts and credit cards, but not from highly-valued customers.

Weekly Management Board meeting on 7 September 2009 65. Exception Fees were again discussed at the Weekly Management Board meeting.

The Board met to discuss the plan to overhaul the fees due to the incoming unfair contracts legislation (that is, the Australian Consumer Law to commence on 1 January 2010). The Minutes record:

Changes will be required to fees anyway due to the changes in the regulatory environment come 1 Jan with the introduction of the Unfair contracts legislation. We are taking into consideration what is the highest fee we can charge when these changes come into effect.

ANZ exception fee response – Recommendation, prepared by Graham Hodges, CEO, Australia Division 66. This paper was annexed to the Minutes of the Weekly Management Board Meeting on

7 September 2009.

67. An executive summary included the following aspects: a. exception fees have become a major focus for media, lobby groups and

politicians so change for customers is now mandatory; b. most consumers will accept a reasonable fee, however, want clear, timely

information and communication; c. introduce a ‘buffer’ and reduce fees for Retail; d. certain fees be removed from people who receive government benefits; e. introduce a ‘buffer’ but predominantly maintain fees for Commercial; f. remove 27 fees and increase account service fees by $1 per month.

68. One aspect of ANZ’s response to the qualitative customer research was that “Fees need to ‘fit the fault’” if they were to be perceived as “justified and proportional.”

CEO Interview, 2012 69. Mr Philip Chronican, CEO of ANZ, when giving an interview in 2012, said “most of

these fees relate to the early stages of people’s accounts being out of order in some way or another”.