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Andrews v ANZ Group Ltd

High Court of Australia [2012] HCA 30


This case related to a representative action brought by around 38,000 members against the ANZ bank alleging unconscionable conduct and unfair terms, amongst other things.

For purposes of this proceeding, the relevant issue related to whether or not certain provisions in contracts between the ANZ and customers were void or unenforceable as penalties. The relevant provisions related to over limit and late payment fees.

After being remitted to the Federal Court it was renamed Paciocco v ANZ (but still represented the same action). That case eventually returned to the High Court (see further reading below).



Details forthcoming

Federal Court (Justice Gordon)

Details forthcoming

High Court Judgment

French CJ, Gummow, Crennan, Kiefel and Bell JJ

A joint judgment was delivered.

[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. In that sense, the collateral or accessory stipulation is described as being in the nature of a security for and in terrorem of the satisfaction of the primary stipulation. 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 enforced only to the extent of that compensation. The first party is relieved to that degree from liability to satisfy the collateral stipulation.

Further details to follow. See further resources for some great overviews of the case - including what followed in Paciocco.


Further resources

External link Coralling the penalties horse: Paciocco v Australia and New Zealand Banking Group Ltd
Katy Barnett (High Court blog, 8 August 2016)

External link Paciocco v Australia and New Zealand Banking Group Ltd
Martin Clark (High Court blog, 27 July 2016)

External link News: Most bank fees not illegal penalties
Katy Barnett (High Court blog, 5 February 2014)

External link Bank fees back in court again
Katy Barnett (High Court blog, 4 December 2013)

External link Andrews v ANZ - the High Court and the doctrine of Penalties
Summary by King&Wood Mallesons (6 September 2012)