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  • The Full Court of the Federal Court of Australia in Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCFCA 50 has overturned the decision of the primary judge and found in favour of ANZ in a class action relating to bank fees.
  • The applicants to the highly publicised class action have filed an application for special leave to appeal to the High Court.
  • While the substantive law of penalties at common law and equity appears settled, the principles for forward-looking, or ex ante, assessment of hypothetical loss are in issue.

There are currently seven representative proceedings issued in the Federal Court of Australia in which customers of certain financial institutions are seeking relief from fees charged on both consumer and commercial accounts. The litigation funder of these ‘bank fees class actions’, IMF Bentham Limited (‘IMF’), and its solicitors say that more than 185,000 Australians are looking to recover more than $240 million in fees that have been charged by financial institutions. Those fees range from $10 to $60.

The first of the bank fees class actions heard by the Federal Court was Paciocco v Australia and New Zealand Banking Group Limited (VID196 of 2013).

The applicants, Lucio Paciocco (‘Paciocco’) and a company controlled by him, Speedy Development Group Pty Ltd (‘SDG’), sought to set aside bank fees charged by ANZ, referred to as ‘Exception Fees’, alleging the Exception Fees were either penalties at common law or equity; or the product of unconscionable conduct by ANZ within the meaning of ss 12CB and 12CC of the Australian Securities and Investments Commission Act 2001 (Cth) (‘ASIC Act’), or ss 8 and 8A the Fair Trading Act 1999 (Vic) (‘FT Act’); or unjust under the National Credit Code found in Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth); or unfair contract terms under s 12BG of the ASIC Act, or s 32W of the FT Act.

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