Inside Money: Bankers and lawyers in unfair fight

Fair Play on Fees lawyer Andrew Hooker outside the High Court in Auckland with lawsuit documents against ANZ Photo / Greg Bowker.

It's game on in the fee fight between bankers and lawyers: a contest where 'honour' and 'dishonour' will be virtually interchangeable terms.

For now, the 'Fair Play on Fees' team has the advantage after a ruling in the Australian Federal early in February that Andrew Hooker, who's leading the legal charge in NZ, says "bodes well" for the anti-bank case on this side of the Tasman.

However, the Australian case, 'Paciocco v ANZ Banking Group', was not an unequivocal victory for the 'Fair Play on Fees' party, with only its claims on credit card 'late payment fees' accepted by the judge.

"The Honour, Dishonour, Non-Payment and Overlimit Fees charged by ANZ were of a different character," the Paciocco judgment says.

According to the ruling, the credit card late payment fees met two fundamental conditions that weighed in favour of Paciocco and co: firstly, they could be classed as 'penalties', as opposed to 'fee for service' type arrangements - and therefore subject to an ancient law on the matter, and; furthermore, the penalties in questions were "extravagant, exorbitant and unconscionable".

The legal arguments around the final point above are particularly entertaining, hinging on reports conducted by two forensic accountants: a Mr Inglis, on behalf of ANZ, and; Mr Regan, for Paciocco.

ANZ had set its late payment fees at $35.

Mr Inglis assessed the cost at between $5 and $73.

Mr Regan assessed the damage at $2.60.

"I am satisfied on the balance of probabilities that ANZ suffered some loss or damage by reason of the Late Payment Exception Fee Event and that the quantum of that loss or damage is no more than $3," Judge Gordon summed up. "On any view, it is considerably less than $35. I assess the loss or damage at $3."

Most rational people won't read the entire 200-page Paciocco judgment but there's more stuff along those lines, revealing the inner commercial workings of ANZ.

For example, we learn in one year ANZ earned A$93 million from 'exception fees', compared to the entire "transaction banking earnings before provisions [of] $208 million".

But even if the 'Fair Play on Fees' wins compensation from ANZ et al, the banks will no doubt claw it back from customers somehow.

As the Paciocco judgment reveals, ANZ was already considering how to protect its 'exception fee' revenue they were to be capped by regulation at "cost recovery", including: a proposal to "remove the 27 fees and increase account service fees by $1 per month", and; increase monthly account fees by "... $0.13 for every $ reduction in per item fee applied on all active accounts or $0.25 for every $ reduction if applied on fee paying accounts only".

Fair Play on Fees NZ, meanwhile, has its own cost-recovery strategies in hand. Assuming the group wins a payout from the banks named in the action, the funder, Litigation Lending Services (NZ) will take 25 per cent after first deducting costs.

How much are those costs likely to be? Andrew Hooker's costs alone (other experts will most likely also be turning in some invoices) will be around NZ$3.5 million, according to the legal agreement sent out to applicants.