Pay late, pay more

On 27 July 2016, the High Court handed down its decision Paciocco v Australia and New Zealand Banking Group Limited, concluding a six year long legal dispute concerning the legitimacy of late payment fees of up to $35 charged by ANZ Bank.

In dispute were two main issues:

  1. whether the fees amounted to a genuine pre-estimate of damage suffered by ANZ due to late payments or, alternatively, whether the fees constituted contractual penalties; and
  2. whether the charging of late payment fees represented unconscionable conduct, engagement in unjust transactions or the incorporation of unfair contractual terms for the purposes of Australian consumer protection laws.

A fee charged under a contract will constitute a penalty if it bears no relation to the damage to or interest of the party who claims the fee or if the fee is extravagant or unconscionable in relation to the greatest loss that could conceivably have followed from the conduct which incurred the fee. A penalty cannot be enforced by a contracting party.

Ultimately the High Court accepted the arguments advanced on behalf of ANZ Bank. Specifically, the Court agreed that a wide range of factors including debt collection costs and costs associated with holding regulatory capital and soured loans should be considered when determining the maximum costs incurred by ANZ in relation to late payments. The Court further found that the late payment fees did not breach Australian consumer protection laws.

Be sure to keep up to date with Hicksons’ blog for a more detailed exploration of the legal issues in dispute in this case.

Post by Patrick Dunn and Rod Cameron 

Most Popular Articles

Blog

Service of Notices by Registered Post

Where service of a notice is authorised or required by post, unless the contrary intention appears, service will be deemed to be effected at the time when the notice would be delivered in the ordinary course of post: see the various Acts Interpretation acts of the States and Commonwealth.
Blog

Medical manslaughter - The Australian Experience

Medical manslaughter has come into the spotlight in the last week following the recent decision in England to deregister a medical practitioner after she was found guilty of manslaughter in 2015.
Blog

Motor Accident Injuries Act 2017- Effects on Section 151Z(1)(d) – Indemnity Claims

The Motor Accident Injuries Act 2017 commences operation on 1 December 2017.

Subscribe to Our Blog

Keeping you connected, Hicksons regularly publishes articles to keep you up to date on the latest developments. To receive these updates via email, please subscribe below and indicate which areas of law you would like to receive information on.

Top