Paciocco v ANZ Banking Group 2014 FCA 35

8/13/2019 Paciocco v ANZ Banking Group 2014 FCA 35

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FEDERAL COURT OF AUSTRALIA

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

Citation: Paciocco v Australia and New Zealand Banking GroupLimited [2014] FCA 35

Parties: LUCIO ROBERT PACIOCCO and SPEEDYDEVELOPMENT GROUP PTY LTD (ACN 006 835383) v AUSTRALIA AND NEW ZEALANDBANKING 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 lawof penalties penalties at law penalties in equity genuine pre-estimate of damage breach of contract collateral or accessory stipulation security for, and interrorem of, satisfaction of primary stipulation furtheraccommodation alternative mode of performance inherent circumstances extravagant and unconscionable

loss and damage late payment fee honour fee dishonour fee overlimit fee non-payment fee cardaccounts saving accounts business accounts unconscionable conduct unjust transactions unfaircontract terms limitation defences

Legislation: Australian Securities and Investments Commission Act2001(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) Act2010(Vic)Fair Trading Amendment (Unfair Contract Terms) Act2010(Vic)

Fair Trading and Other Acts Amendment Act 2009 (Vic)Limitation of Actions Act 1958(Vic)


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Cases cited: Acron Pacific Ltd v Offshore Oil NL(1985) 157 CLR 514Air Express v Ansett Transport Industries (Operations) PtyLtd(1979) 146 CLR 249AMEV-UDC Finance Limited v Austin (1986) 162 CLR170

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) 284ALR 638

Australian Competition and Consumer Commission v 4WDSystems Pty Ltd(2003) 200 ALR 491

Australian Competition and Consumer Commission vAllphones Retail Pty Ltd (No 2)(2009) 253 ALR 324Australian Competition and Consumer Commission v CG

Berbatis Holdings Pty Ltd(2003) 214 CLR 51Australian Competition and Consumer Commission v LuxDistributors Pty Ltd[2013] ATPR 42-447Australian Competition and Consumer Commission vSimply No-Knead Franchising Pty Ltd(2000) 104 FCR253

Australian Securities and Investments Commission vNational Exchange Pty Ltd(2005) 148 FCR 132Baltic Shipping Company v Dillon (Mikhail Lermontov)(1991) 22 NSWLR 1

Baltic Shipping Company v Dillon(1993) 176 CLR 344BMP Global Distribution Inc v Bank of Nova Scotia[2009]1 SCR 504Citicorp Australia Ltd v O'Brien(1996) 40 NSWLR 398Clydebank Engineering and Shipbuilding Company v Don

Jose Ramos Yzquierdo Y Castaneda[1905] AC 6Commissioner of Taxation v Sara Lee Household & BodyCare (Australia) Pty Ltd(2000) 201 CLR 520Commonwealth v Amann Aviation Pty Ltd(1991) 174 CLR64Commonwealth Trading Bank of Australia v Sydney Wide

Stores Proprietary Limited(1981) 148 CLR 304Concut Pty Ltd v Worrell(2000) 75 ALJR 312Custom Credit Corporation Ltd v Lupi[1992] 1 VR 99

David Securities Pty Ltd v Commonwealth Bank ofAustralia(1992) 175 CLR 353Devaynes v Noble (1816) 1 Mer 529 (Claytons case)Director of Consumer Affairs Victoria v Scully(2013) 303ALR 168

Dunlop Pneumatic Tyre Company Limited v New Garageand Motor Company Limited[1915] AC 79

Elberg v Fraval[2012] VSC 342

English Hop Growers v Dering[1928] 2 KB 174Farmer v Arundel (1772) 96 ER 485


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Fink v Fink(1946) 74 CLR 127Fletcher Construction Australia Ltd v Varnsdorf Pty Ltd[1998] 3 VR 812French v Macale(1842) 2 Drury and Warren 269Godfrey v National Australia Bank(2001) NSWSC 977

Hardy v Martin(1783) 1 Cox Eq Cas 26Hurley v McDonalds Australia Ltd(2000) ATPR 41-741InterstarWholesale Finance Pty Ltd v Integral HomeLoans Pty Ltd (2008) 257 ALR 292Jetstar Airways Pty Ltd v Free[2008] VSC 539Johnes v Johnes(1814) 3 ER 969Kedem v Johnson Lawyers Legal Practice Pty Ltd[2013]FCA 432Kleinwort BensonLtd v Lincoln City Council [1999] 2 AC349Knezevic v Perpetual Trustees Victoria Ltd[2013]

NSWCA 199Knowles v Victorian Mortgage Investments Ltd[2011]VSC 611

La Trobe Capital & Mortgage Corporation Ltd v HayProperty 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 CommerceInternational SA[1986] FLR 36Lordsvale Finance Plc v Bank of Zambia[1996] QB 752Mackenzie v Albany Finance Ltd[2003] WASC 100May v Brahmbhatt[2013] NSWCA 309Mayne Nickless Ltd v Multigroup Distribution Services PtyLtd(2001) 114 FCR 108McRae v Commonwealth Disposals Commission(1951) 84CLR 377

Merck Sharp & Dohme (Australia) Pty Ltd v Peterson[2009] FCAFC 26

Metro-Goldwyn-Mayer Pty Ltd v Greenham [1966] 2NSWR 717Murray v Leisureplay plc[2005] EWCA Civ 963

National Bank of Commerce v National Westminster Bank[1990] 2 Lloyds Rep 514Nu Line Construction Group Pty Ltd v Fowler[2012]NSWSC 587ODea v Allstates Leasing System (WA) Pty Ltd(1983) l52CLR 359Office of Fair Trading v Abbey National plc [2008] EWHC875 (Comm)Perdaman Chemicals and Fertilisers Pty Ltd v ICICI Bank

Ltd [2013] FCA 175Perpetual Trustee Company Limited v Khoshaba [2006]

NSWCA 41Provident Capital Ltd v Papa[2013] NSWCA 36


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Radin v Commonwealth Bank of Australia[1998] FCA1361

Ringrow Pty Ltd v BP Australia Pty Ltd(2005) 224 CLR656

Robophone Facilities v Blank[1966] 1 WLR 1428

Rolfe v Peterson(1772) 2 Bro PC 436Roumanus v Orchard Holdings (NSW) Pty Ltd (in liq)(2012) 90 ACSR 677Sent v Jet Corporation of Australia Pty Ltd (1986) 160CLR 540Sony Computer Entertainment Australia Pty Ltd v Stirling[2001] FCA 1852Spiers Earthworks Pty Ltd v Landtec Projects CorporationPty Ltd (No 2) (2012) 287 ALR 360Tonto Home Loans Australia Pty Ltd v Tavares(2011) 15BPR 29,699

Torrens Aloha Pty Ltd v CitibankNA (1997) 72 FCR 581Wardley Australia Limited v Western Australia(1992) 175CLR 514Waterside Workers Federation of Australia v Stewart(1919) 27 CLR 119West v AGC (Advances) Ltd (1986) 5 NSWLR 610Yarra Capital Group Pty Ltd v Sklash Pty Ltd[2006]VSCA 109

Mason, Ill have my bond; speak not against my bond:Constructive trusts and surplus proceeds from performance

bonds (2012) 6Journal of Equity74Pomeroy JN,A Treatise on Equity Jurisprudence(5

thed,The Lawyers Co-operative Publishing Company 1941)Story J, Commentaries on Equity Jurisprudence as

Administered in England and America, (13thed, 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


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

Solicitor for the Respondent: Ashurst Australia


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IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION 196 of 2013

BETWEEN: LUCIO ROBERT PACIOCCOFirst Applicant

SPEEDY DEVELOPMENT GROUP PTY LTD (ACN 006 835383)Second Applicant

AND: AUSTRALIA AND NEW ZEALAND BANKING GROUPLIMITED (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 judgmentby 4:00pm on 12 February 2014.

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


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IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION 196 of 2013

BETWEEN: LUCIO ROBERT PACIOCCOFirst Applicant

SPEEDY DEVELOPMENT GROUP PTY LTD (ACN 006 835383)Second Applicant

AND: AUSTRALIA AND NEW ZEALAND BANKING GROUPLIMITED (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 /ALTERNATIVEMODE 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]


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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 and3) [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 APENALTY? [103]


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

(1) Exception Fee 4 [108]

(a) Terms and Inherent Circumstances of the Contract, judged at thetime 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]

ANZs State of Mind [124]

(ii) Quantitative assessment [131]

Introduction [131]


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Issues with the Inglis Reports [138]

Finch Report [169]

(e) Loss and damage step 6 [170]

(f) ANZs other submissions [175]

(2) Exception Fees 5-11 [177]





(e) Loss and damage step 6

[184]

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 ExceptionFees 12 and 13 step 2 [214]


(d) Extravagant and Unconscionable step 5[228]


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

D. POST DECEMBER 2009LATE PAYMENT FEES [234]

(1) Exception Fees 14, 16-18, 23, 27, 28, 31, 34, 36-38, 41, 42, 45-47 and49 [235]




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E. POST DECEMBER 2009OVERLIMIT,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]





(e) Loss and damage step 6[274]

PART 7: UNCONSCIONABLE CONDUCT [275]


B. APPLICABLE LEGAL PRINCIPLES [279]

C. APPLICANTSSUBMISSIONS [286]

D. ANALYSIS [289]

(1) Introduction [289]

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


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C. UNJUST TRANSACTIONS UNDER THE NEW CODE [371]

D. UNFAIR TERMS UNDER THE FTAAND THE ASICACT [372]

PART 11: REMEDIES AND ORDERS [373]


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REASONS FOR JUDGMENT

PART 1: OVERVIEW

1 The Applicants, Mr Pacioccoand one of his companies, Speedy Development Group PtyLtd (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 depositaccount 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 notconstitute a penalty at common law or apenalty 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 inSch 1 to theNational Consumer Credit Protection Act 2009(Cth) (the New Code).

3. The Exception Fee Provisions in Mr Pacioccos consumer deposit account and consumercredit 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 Pacioccosconsumer 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.


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5 The honour, dishonour, non-payment or overlimit fees charged to the Applicants by ANZwere 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 thatMr 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 Feetogether with interest. Mr Pacioccos 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 Act1976(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 Pacioccos 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 Pacioccos 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.


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10 SDGs claims related to Exception Fees charged on Business Classic Account numberxxxx-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 inequity (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 reliedupon 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 lawand, 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 inAndrews 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 Courtat [51].

14 Although it is said now by both sides to be necessary to consider the penalties question atlaw 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 particularstipulation may(not must) be considered by reference to the following steps:


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1. Identify the terms and inherent circumstances of the contract, judged at the time of themaking 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 andAndrews High Courtat [12].

3. Identify if the stipulation is payable on breach of a term of the contract (a necessaryelement 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 terroremof, the satisfaction

of the term.

4. Identify if the stipulation, as a matter of substance, is collateral (or accessory) to a primarystipulation in favour of one contracting party and the collateral stipulation, upon failure ofthe 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 inequity: seeAndrews 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 eventsof 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 ofdamage 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 partys proved loss: Andrews High Courtat [10].

16 Consideration of the matters listed in [15(5)and (6)above] (namely, is the stipulated sumextravagant and unconscionable, and if so, what is the partys proved loss?) are addressed last

because they are applicable at law and in equity.


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B. COMMON LAW

17 The principles set out in Dunlop at 86-87 (confirmed in Ringrow Pty Ltd v BP AustraliaPty 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 didnot disapprove of any aspect ofDunlopand observed thatDunlopwas 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 Dunedins speech in Dunlop at 86-87 (cited by theHigh Court inRingrow):

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

3. The question whether a sum stipulated is penalty or liquidated damages isa question of construction to be decided upon the terms and inherentcircumstances of each particular contract, judged of as at the time of themaking 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 isextravagant and unconscionable in amount in comparison with thegreatest loss that could conceivably be proved to have followedfrom the breach.

(b) It will be held to be a penalty if the breach consists only in notpaying a sum of money, and the sum stipulated is a sum greaterthan 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, onthe occurrence of one or more or all of several events, some ofwhich 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 suchas to make a precise pre-estimation almost an impossibility.On the contrary, that is just the situation when it is probable thatpre-estimated damage was the true bargain between the parties.

(Citations omitted.)


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19 In addition to those propositions, the following emerges fromDunlop: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 natureuncertain, 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 ascertainablesum 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 inAMEVat 193-194, the question of whethera 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 sufferedby 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 theunconscionability of the plaintiffs 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 atlaw is a question of construction that must be determined as a matter of substance, viewing the

contract as a whole: ODea 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, ODeaat 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].


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C. IN EQUITY

22 This aspect of the judgment must be framed (initially) by reference to the decision inAndrews High Court. It is necessary to understand whatAndrews High Courtdecided and what it

did not decide. Indeed, what the Court decided is dictated by the way the separate questions hadbeen framed. The separate questions were cast as they were having regard to the decision in

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

High Court, did notask 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 banks 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 inAndrews High Courtwhich relevantly stated (at 238-239):

set aside orders 1 and 2 of the orders made by the Federal Court of Australia on13 December 2011, and in their place declare that the circumstances:

(a) that the honour, dishonour, non-payment and over limit fees were notcharged by the [ANZ] upon breach of contract by its customers, and

(b) that the customers had no responsibility or obligation to avoid theoccurrence of events upon which these fees were charged,

do notrender these fees incapableof 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 Courtat [51] and see also [13]above.


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26 Second, the law of penalties was not confined to payments (or other obligations) imposedupon 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 amatter of substance, it is collateral (or accessory) to a primary stipulation in favourof a second party and this collateral stipulation, upon the failure of the primarystipulation, imposes upon the first party an additional detriment, the penalty, to thebenefit of the second party.

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

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

27 Third, as a matter of substance, the collateral or accessory stipulation operates in thenature of a security for, and in terroremof, 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];

Dunlopat 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, Ill 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 maderather 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 byfailure 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].


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30 Fifth, the penalty doctrine is notengaged if the prejudice or damage to the interests of thesecond 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 whichneed 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 damagesmade 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 OFPERFORMANCE

33 The analysis of the decision inAndrews High Courtis not complete without reference to afurther 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 SouthWales 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.


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35 As pointed out in Andrews High Court at [80], that operative distinction had been earlieridentified 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 isrestricted by covenant from doing the particular act, although if he do it a paymentis reserved; or whether according to the true construction of the contract, itsmeaning is, that the one party shall have a right to do the act, on payment of whatis agreed upon as an equivalent. If a man let meadow land for two guineas anacre, and the contract is, that if the tenant choose to employ it in tillage, he may doso, paying an additional rent of two guineas an acre, no doubt this is a perfectlygood and unobjectionable contract; the breaking up the land is not inconsistentwith the contract, which provides, that in case the act is done the landlord is toreceive an increased rent.

See also Lord Loughborough inHardy 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 thehiring 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 authorisedoccasion. 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 thathe may exercise such an option in one event only, namely, that he pay a hiring feeof four times the usual hiring fee.

NeitherMetro-Goldwyn-Mayer norMacalehas been since cited or considered elsewhere.

37 The High Court referred to Pomeroys treatise under the heading Stipulations notPenalties 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 (5

th

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 arecertain kinds of stipulations not unfrequently inserted in agreements which havebeen judicially interpreted and held not to be penalties, and therefore not subject tobe relieved against by courts of equity. The nature and effect of these stipulationsI shall briefly explain. The first instance is that of a contract by the terms of whichthe contracting party so binds himself that he is entitled to perform either one oftwoalternative stipulations, at his option; and if he elects to perform one of thosealternatives, 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.


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To state the substance of the agreement in briefer terms, the contracting party maydo 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 thecontracting party from the payment of the larger sum, upon his performance of thelatter alternative to which such payment is annexed; nor, on the other hand, will itdeprive him of his election by compelling him to abstain from performingwhichever 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 atcommon law and in equity a stipulated sum will only be regarded as a penalty if it is extravagant

(or exorbitant) and unconscionable in amount: Dunlopat 86-87;Ringrowat [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 ofthe 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 inamount 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


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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]. InDunlop(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 inRingrow at [31]-[32]:The law of contract normally upholds the freedom of parties, with no relevantdisability, to agree upon the terms of their future relationships. As Mason andWilson 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 theirrights and liabilities will be, so that an agreed sum is only characterised asa penalty if it is out of all proportion to damage likely to be suffered as aresult of breach.

Exceptions from that freedom of contract require good reason to attract judicialintervention to set aside the bargains upon which parties of full capacity haveagreed. That is why the law on penalties is, and is expressed to be, an exceptionfrom the general rule. It is why it is expressed in exceptional language.It explains why the propounded penalty must be judged extravagant andunconscionable 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 penalrather than compensatory? InAMEV, 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) thedegree of disproportion between the stipulated sum and the loss likely to besuffered by the plaintiff, a factor relevant to the oppressiveness of the term to thedefendant, and (2) the nature of the relationship between the contracting parties, afactor relevant to the unconscionability of the plaintiffs conduct in seeking toenforce 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.


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44 In assessing whether the stipulated sum is extravagant and unconscionable in amount incomparison 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 toprove 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: Clydebankat 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 thepenalty 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. InAndrews 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 calculationor 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] andLa 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


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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 theamount 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 partys 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 chargedthe 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 entitledContracts 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.


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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 eachstatement 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 theMonthly Payment plus any Amount Due Immediately shown on the statementof account is not paid within 28 days of the end of the Statement Period shownon 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 anyAmount 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.


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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 Account9522, the contractual documents comprised:

1. in relation to the Exception Fee on 12 August 2009 on Card Account 9629 (Exception Fee12), 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 cardaccount. If ANZ issues more than one credit card for use on your creditcard account no separate limit applies for each credit card. The accountholder 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 creditlimit.

(b) You must not exceed the credit limit unless ANZ has consented in writingor ANZ otherwise authorises the transaction which results in the accountholders outstanding balance exceeding the credit limit. By authorising atransaction which results in the account holders outstanding balanceexceeding the credit limit, ANZ is not increasing the account holderscredit limit. If you exceed your credit limit, you must pay the amount bywhich the outstanding balance exceeds the credit limit immediately.

(c) Any withdrawal, transfer or payment from the credit card account will bemade firstly from any positive (Cr) balance and secondly from anyavailable credit in the credit card account.


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(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 endof the Statement Period shown on the statement of account if the balance of theaccount exceeds the Credit Limit during that statement period. Charged at amaximum of once per statement period.

[Note that the Letter of Offer dated 24 July 2009 stated that A fee of $35* will becharged and account exceeds the Credit Limit#during that statement period.Neither party contended that the matters referred to in the * or # had any substantiverelevance 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 ofaccount if the balance of the account exceeds the Credit Limit during thatstatement 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 HonourFee 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 priorwritten agreement. Depending on your account type, credit can be provided


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through an ANZ Equity Manager facility, an Overdraft facility or an ANZAssured facility. It is a condition of all ANZ accounts that you must not overdrawyour account without prior arrangements being made and agreed with ANZ.

If a debit would overdraw your account, ANZ may, in its discretion, allow thedebit on the following terms:

interest will be charged on the overdrawn amount at the ANZ Retail IndexRate plus a margin (refer to ANZ Personal Banking Account Fees andCharges booklet for details);

an Honour Fee may be charged for ANZ agreeing to honour the transactionwhich 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 willbe debited to your account; and

you must repay the overdrawn amount and pay any accrued interest on thatamount and the Honour Fee within seven days of the overdrawn amount beingdebited to your account.

(Emphasis added.)

66 The imposition of the Honour Fee was also addressed in the August 2008 Fees andCharges Booklet:

Honour Fee

Payable on each occasion that ANZ honours a drawing where sufficientcleared funds are not available in the account or when the credit limit on youraccount is exceeded. $35

The Honour Fee is payable on the date of the excess and drawings include thosemade at a branch, by cheque, or electronic banking. Electronic banking includesInternet, 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 aPeriodical Payment that is not made because there are insufficient cleared funds inyour account.


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68 The imposition of the Non-Payment Fee was also addressed in the August 2008 Fees andCharges 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 December2009.

C. POST DECEMBER 2009

(1) Saving Account 156

70 Mr Paciocco does not claim any Exception Fees on Saving Account 156 after December2009.

(2) Card Accounts 9522 and 9629

71 Mr Paciocco was charged 37 Card Exception Fees 18 Late Payment Fees on differentdates 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 MonthlyPayment plus any Amount Due Immediately shown on the statement ofaccount is not paid within 28 days of the end of the Statement Period shown onthat 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


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any amount Payable Immediately shown on the statement of account is notpaid by the Due Date shown on that statement.

75 The other Late Payment Fees charged on the Card Accounts after December 2009 werecharged pursuant to different contractual documents. There is no dispute that the terms in thosedocuments 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 and50)

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 cardaccount. If ANZ issues more than one credit card for use on your credit

card account no separate limit applies for each credit card. The accountholder 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 ifthe decrease would result in the outstanding balance exceeding the creditlimit.

(b) From time to time, there may be a debit made to your credit card accountwhich, if processed, would temporarily result in the outstanding balanceexceeding your credit limit. ANZ has an Informal Overlimit service tohelp you in these circumstances.

(c) When a debit is initiated which, if processed, would result in theoutstanding balance temporarily exceeding your credit limit, you make arequest for an Informal Overlimit amount. ANZ will consider yourrequest for an Informal Overlimit amount and, if both the debit and theaccount holder satisfy ANZs credit criteria for Informal Overlimitamounts, ANZ will allow the debit to be processed as an InformalOverlimit amount, on the following terms:

interest will be charged on the Informal Overlimit amount at theapplicable interest rate for purchases, cash advances and otherpayments (see Condition (19));

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


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details);

the Informal Overlimit amount, any interest on that amount andany 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 onthe next statement of account after the Informal Overlimit amountis debited to your credit card account; and

- the day that is 60 days after the day on which the InformalOverlimit amount is debited to your credit card account.

(d) By processing a debit as an Informal Overlimit amount, ANZ is notincreasing the account holders credit limit.

(e) Any withdrawal, transfer or payment from the credit card account will bemade firstly from any positive (Cr) balance and secondly from anyavailable credit in the credit card account. An Informal Overlimit amountwill only be provided if there is no available credit in the credit cardaccount and both the debit and the account holder satisfy ANZs criteriafor 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 takeyou over your credit limit please note that this service is not

available for all transaction types (for example, it is not availablefor a transaction that is not electronically authorised such as apurchase that is manually debited to your credit card account ifEFTPOS is not available). Please ask for our Overlimit CreditCard Opt Out Form;

- about ways in which you can monitor the balance of your creditcard account; or

- if you have longer-term, ongoing borrowing needs, how to applyfor an increase to the account holders credit limit or forinformation about other products that may suit your needs.

(Emphasis added.)

78 The ANZ Personal Banking Account Fees and Charges dated November 2011(November 2011Fees 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:


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Overlimit Fee $20

Charged to your credit card account at the end of the Statement Periodshown on the statement of account if we agree to provide an InformalOverlimit amount during that statement period. The Overlimit Fee is chargedat a maximum of once per statement period.

79 The other Overlimit Fees charged on the Card Accounts in this period were chargedpursuant 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 Offerthat we sent to you, and you can also find these in the ANZ Personal BankingAccount Fees and Charges booklet which is available on anz.com or at any ANZbranch.

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 arefees 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 BasicAccount)

You can avoid some of these fees:

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

We have convenient services available to you that make it easy to makeyour minimum payment on time such as CardPay Direct please ask usfor 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 sentyou, and its also shown on your monthly account statement


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Sometimes you might have a transaction that temporarily causes you toexceed your credit limit. In this situation, we want to help you avoidembarrassing moments such as being declined while purchasing yourgroceries. Where you and the transaction which would exceed your creditlimit satisfy our criteria, we will provide you with a convenient service tocover your payment needs we call this service an Informal Overlimitfacility. An Overlimit Fee will be charged for this service.

You can also ask us to decline certain transactions so that you dontexceed your credit limit. Please see clause 2 in this booklet for furtherinformation.

80 For some of the Overlimit Fees (Exception Fees 29, 30, 32, 33 and 35), the Fees andCharges 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 Periodshown on the statement of account where:

any type of debit is initiated on your credit card account thatwould cause you to exceed your credit limit during the StatementPeriod; and

we agree to provide you with an Informal Overlimit amount toallow 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 witheffect 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 ondifferent 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 Fees51 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


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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 Conditionsprovided:

If you satisfy ANZs credit criteria for an Informal Overdraft facility, ANZ willagree to your request by allowing the debit to be processed as an InformalOverdraft, on the following terms:

If the balance of your Informal Overdraft facility exceeds $50 at the time ofyour request, or will exceed $50 once the debit requested is processed, youwill be charged an Informal Overdraft Assessment Fee on the day on whichthe 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 bankstatements and in the ANZ Business Banking Transaction Accounts Fees andCharges booklet as an Honour Fee) is payable immediately.

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

Honour Fee $37.70

Charged for considering a request for an Informal Overdraft where you satisfy

ANZs credit criteria for an Informal Overdraft, and the balance of your InformalOverdraft facility exceeds $50 at the time of your request or will exceed $50 afterthe 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 provisionsextracted 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 willexceed $50 after a requested debit has been processed. This fee is for considering


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a request for an Informal Overdraft where you satisfy ANZs credit criteria.

88 For Exception Fees 55-61 and 72, the applicable provisions again included the twoprovisions 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 FacilityLetter of Offer dated 29 November 2011 at [88]above.

90 The parties accepted that the contractual documents were materially and substantivelysimilar 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 Banks 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 ANZs credit criteria for an Informal Overdraft, ANZ willdecline your request and will not allow the debit to be processed. You will becharged an Informal Overdraft Assessment Fee (referred to in your bankstatements and in the ANZ Business Banking Transaction Accounts Fees andCharges booklet as an Outward Dishonour Fee) and this fee is payableimmediately.

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 notsatisfy ANZs 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 proceedingsoperated in, and formed part of, a wider framework. Aspects of that wider framework


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

Andrews Trialat [81]-[82] (see alsoBMP 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 accordingto their terms, and in accordance with a basic principle of the commonlaw of contract that parties to a contract are free to determine for

themselves what primary obligations they will accept.

Williams and Glyns Bank v Barnes [1981] Com LR 205 at 209 (quoting PhotoProduction Ltd v Securicor Transport Ltd [1980] AC 827 at 848) cited withapproval inNarni Pty Ltd v National Australia Bank [2001] VSCA 31 at [19].

Unsurprisingly, the contractual terms are important; it is a contract usually withmany 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 vCreswick (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 bankborrows the money and proceeds from the customer and undertakes torepay them on demand. The banks undertaking includes a promise to payany part of the amount due against the written order of the customeraddressed to the branch of the bank where the account is kept:

Joachimson at [127]. Conversely, the bank will not pay any part of theamount due to the customer without such an order or some othercompulsion or entitlement recognised by law;

2. The issue of a cheque by a customer, or the giving of a paymentinstruction or withdrawal request to its bank, which would have the effectof overdrawing a customers account, is construed as a request by thecustomer for an advance or loan from the bank, and the bank has adiscretion to approve or disapprove the loan: Cuthbert v Robarts,

Lubbock & Company[1909] 2 Ch 226 at 233; Barclays Bank Ltd v W JSimms 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 NationalAustralia Bank Ltd [1998] VSC 146 at [37] andNarni Pty Ltd v NationalAustralia Bank Ltd[2001] VSCA 31 at [21];

3. A written order by a customer which requires the bank to pay a greateramount than the balance standing to the credit of the customer may bedeclined. 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 unlessoverdraft arrangements have been made which are adequate to cover the


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

4. If a customer with no express overdraft facility draws a cheque whichcauses his account to go into overdraft, the customer, by necessaryimplication, requests the bank to grant an overdraft on its usual terms as tointerest 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 inAustralia, (Thompson Lawbook Co) at [2.140] (update 62).

94 The Applicants accepted that characterisation of the relationship between banker andcustomer but contended that its relevance was merely historical. The contention that these

established principles concerning the relationship of banks and their customers are merelyhistorical 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 inAndrews High Courtwere not the subject of challenge in, or disturbed by, the High

Court inAndrews High Court.

95 The Applicants also placed reliance on what they described as the inherentcircumstances of each contract including that:

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


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4. ANZ determined the quantum of each Exception Fee included in each contract and did notdo 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 butreferred 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 ANZs customers.

97 The nature and size of ANZs business dictated the nature and manner in which therelevant 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 ANZs business customers.

98 Customers were able to open accounts with ANZ at a branch and could apply to open mostaccounts 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 andfees 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 overdrawtransaction 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.


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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 ANZs 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 thecredit 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, internetbanking and phone banking transactions). Shadow limits are recalculated at an accounts 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 customers

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 pa

Paciocco v ANZ Banking Group 2014 FCA 35

Documents

Transcript of Paciocco v ANZ Banking Group 2014 FCA 35