38,000 Australian Bank Customers Win Largest Class Action Over Fees

By Nicola Berkovic, The Australian – September 6, 2012

http://tinyurl.com/99f799v

BANK customers involved in the nation’s largest class action, against ANZ Bank, have claimed a victory in the High Court, which today declared the bank’s over-limit fees could be characterised as a penalty or punishment.

This means the bank’s $29.95 over-limit fee – charged on top of 4 per cent interest on the amount overdrawn by the customer – could be illegal.

ANZ now faces an uphill battle to convince the Federal Court the fee is a genuine estimate of its costs and not a penalty.

Justin Gleeson SC, representing 38,000 ANZ customers, had argued that fees charged by banks when customers exceeded their limits did not provide any service and were in fact a punishment.

He argued the bank already recovered its costs by charging the customer 4 per cent interest on the amount overdrawn, and that the $29.95 fee was “unjust enrichment of the bank”.

The case is part of a wider class action funded by litigation funder IMF on behalf of 170,000 customers from ANZ, Commonwealth, National Australia Bank, Westpac, St George, Citibank, Bankwest and Bank SA who are claiming more than $223 million in excessive fees. The claims against ANZ began in September 2010 in the Federal Court.

In December last year, the Federal Court found that late payment fees were capable of being penalties because they were charged as a result of a breach of contract. But the court said other fees, such as dishonour fees – where banks charge a fee for overdrawn accounts as well as interest on the amount overdrawn – were not a penalty but a service.

This morning, the High Court unanimously rejected the notion that only fees payable for a breach of contract were capable of being classed as a penalty or punishment.

It said even though dishonour or over-limit fees were not payable on a breach of contract, they could still be characterised as a penalty.

The High Court took just three weeks to reach its decision. The hearing was the last for influential High Court judge Bill Gummow, who retires next month when he turns 70.

It will now be up to the Federal Court to determine, on the facts, whether the fees were in fact penalties or represented a genuine reflection of the bank’s costs.

James Middleweek, the managing director of IMF subsidiary, Financial Redress, which is handling the case said the decision was a “tremendous victory”.

“It’s great news for (the) 170,000 bank customers (involved in the class action) and we’d urge everyone to join up,” he said.

“For the many banks that are still charging these excessive fees, the High Court has given a very sharp warning that these could be illegal.”

Mr Middleweek said anyone could still join the class action via the Financial Redress website.

He said industry estimates suggested the banks had charged a total of about $5 billion in unfair fees over the six years covered by the claim.