Bank targeted in lawsuit says customers agree to terms and conditions when they open accounts.

The ANZ Bank has defended its penalty fees as fair, saying they reflect extra services provided to customers whose accounts require attention over and above their banking contract.

Court documents exclusively obtained by the Herald, reveal the bank's defence against a class action-style lawsuit alleging that ANZ has charged customers unfair penalty fees.

The suit is being organised by Auckland barrister Andrew Hooker, who has encouraged more than 11,000 customers from the ANZ and its recently rebranded subsidiary, National Bank, to join.

Thousands of customers from other banks have also signed up to Mr Hooker's Fair Play on Fees campaign, launched in March, and further proceedings are expected to be announced in the near future.


Though a date is yet to be set for the ANZ case, court documents outlining both the complaint and the bank's defence have been filed in the High Court at Auckland.

ANZ customers are battling for the repayment of six years' worth of default fees charged for unarranged overdrafts, rejected payments, late payments and exceeding credit card limits. Their statement of claim requests the court to declare that the charges were "wholly unenforceable" and or void as a penalty, and to rule that the bank pays back all amounts that exceeded the bank's actual loss, including any interest charged.

However, in its statement of defence, ANZ strenuously denied any wrongdoing.

It pointed out that whenever a person opened an account, he or she agreed to certain terms and conditions, including what fees would be incurred for specific "events" such as late payment and unarranged overdrafts.

It outlined the various ways in which it communicated the terms and conditions and any changes to them - both before and after National Bank ceased.

ANZ also outlined how customers were advised about the penalties for unarranged overdrafts, not paying credit cards on time or exceeding their limits.

It said it offered grace periods, waived fees for some customers as a "goodwill gesture" and only charged when an outstanding credit card balance was over a certain amount.

It argued that the fees were not payable as "damages" for breach of the terms and conditions of the ANZ and National Bank accounts. Rather they were payable when certain "events" occurred within accounts that customers were not entitled to as part of their banking contract.

ANZ said the fees were charged when the bank supplied "one or more services" to customers to benefit them, over and above what they were entitled to. It said if the court determined that the fees charged to the plaintiffs were void, it would incur loss and damage.

Both sides made submissions yesterday relating to the upcoming case in the High Court.

Discussions included whether there should be one class of plaintiff representing all ANZ customers with similar interests or six classes representing the different banking customers complaining.