ANZ fees class action has final day in court
The Federal Court's hearing of the ANZ exception fees class action test case ended in Melbourne yesterday, with counsel for both sides presenting their final oral submissions to the bench.Counsel for the bank Alan Archibald and Michael O'Bryan made detailed presentations defending ANZ against claims it had overcharged customers and had acted unconscionably.Both counsel relied on evidence given to the court by British banking expert, Will Inglis.While ANZ has argued throughout the case that it did not know the costs of exception events when it drafted consumer contracts between 2004 and 2010, it commissioned Inglis, in 2011, to undertake such an analysis.Archibald cited Inglis' research to argue against the plaintiffs' claims that the bank's fee structure was extravagant and much higher than the costs of managing exception events such as overdraws and dishonoured transactions.He cited Inglis' analysis of the exception fees paid by two of the plaintiffs, which, he said, showed the costs borne by the bank for exception events were "equal to or greater than the amount of the fees".O'Bryan told the court that Inglis' evidence showed that ANZ's interests were "harmed" through exception events such as late payments and overdraws."The exception events adversely affect the amount of loss provisions that must be held; the exception events adversely affect the regulatory capital that ANZ must hold, and also involve operational costs," he told the court.Some of ANZ's exception fees ranged as high as A$45 before they were reduced in 2009.Michael Lee, speaking for the plaintiffs last week, tendered internal bank records, which, he argued, demonstrated that the bank knew its fees were grossly disproportionate to the costs of managing exception events.The internal documents, which included minutes of executive board meetings and reports of fee working groups, were cited by Lee as evidence that ANZ had levied the fees as penalties on customers rather than to retrieve expenses.The plaintiffs relied on the evidence of another expert witness - Californian forensic accountant, Paul Regan - to argue that Inglis' cost estimates are overstated.The plaintiffs provided evidence during the trial to indicate that ANZ's costs on some exception events might have been less than 40 cents.Lee told the court yesterday that the exception fees were not imposed as compensation for services provided to customers. Instead, they were penalties for breaches of contract.Throughout the trial, Lee has sought to show that under equity law - which covers the doctrine of penalties - that ANZ's exception fees were "unconscientious" because their value was disproportionate to the costs borne by the bank.One of the internal documents tendered by Lee last week alluded to ANZ research, which showed that customers believed they did not receive a service when exception fees were levied.Yesterday, Archibald drew Justice Michelle Gordon's attention to the wording of the document."It's not that the bank thought there was no service," he told the court. "The bank was finding out that customers thought there was no service."ANZ's counsel, Michael O'Bryan, countered with arguments against Regan's expert evidence that the bank should not have included