By John Bowie | LawFuel publisher
The summary judgment hearing may be over, but as Justice Venning considers the verdict, ANZ’s problem remains entirely the same — and the bank’s three lines of defence have a familiar quality: plausible at the bar, less convincing in the cold light of the statute.
Few things are quite as illuminating as watching New Zealand’s largest bank spend its considerable resources arguing that the law should be taken seriously, except, naturally, when it applies to the bank itself.
That, in essence, is what ANZ attempted when it lobbied Parliament for a retrospective change to the CCCFA to apply to this case, and what it has continued to argue throughout the recently concluded summary judgment hearing in the Banking Class Action brought against it.
It is instructive that Antonia Watson, ANZ New Zealand’s CEO, (pictured below with ANZ Chairman Scott St John) had ample time to repeatedly involve herself in lobbying Government and doing the media rounds in October 2025, declaring it “unfair” that ANZ had not received the retrospective law change it wanted.
Yet she was notably absent from a hearing that concerned the rights of more than 100,000 of her customers. This is not intended to be uncharitable, but it does rather neatly illustrate where the bank’s priorities have lain throughout this saga.
The High Court hearing surfaced ANZ’s three main arguments for why it should be relieved of the consequences of its breach: the error was outsourced; customers suffered no actual financial loss; and the statutory outcome is disproportionately severe.
Each has a certain superficial attraction. But each, upon inspection, also has problems.
The Contractor Defence: “A Third Party Did It”
ANZ’s first line of retreat is to point at the contractor. The calculator problem, it appears, was outsourced. This is, of course, entirely normal commercial practice, except that compliance with consumer protection law is not among the things a bank is entitled to farm out and then disclaim.
ANZ owed the duty. ANZ sent the letters. ANZ was responsible for the accuracy of its own disclosures. If a third party introduced the error into ANZ’s system, that may well explain the mechanics of how the problem arose.
It does not explain why ANZ failed to verify that its letters were correct, or why it did not undertake thorough testing before going live with changes affecting the disclosure obligations on over 100,000 customers, particularly, as ANZ itself has suggested, when there were already signs that other errors had occurred. If anything, those earlier signs should have prompted more diligence. Not less.
One might have thought that a bank with a market capitalisation north of NZ$130 billion could stretch to a decent compliance review. Apparently not.
The Harm Argument: “No One Really Suffered”
ANZ’s second argument is that customers were remediated, and that no one suffered actual financial loss. This sounds reasonable until one remembers that this is not a sympathy contest. It is a statutory one.
The law in force at the time did not require a customer to demonstrate actual financial harm before the consequences of non-compliance followed. Parliament could have written the statute that way. It chose not to. Instead, it imposed clear disclosure obligations on lenders and attached serious consequences to getting them wrong — deliberately so, because consumer credit law operates on the premise that banks hold the power, the documents, the systems and the information, while customers generally do not.
The “no real harm done” line may make for a serviceable press release. As a legal argument, it is considerably weaker.
The Disproportionality Argument: “The Outcome Is Too Severe”
ANZ’s third argument is that the consequences feel harsh relative to the breach and is perhaps the most candid, and also the most circular.
What the bank appears to be saying is: yes, we breached consumer protection obligations affecting more than 100,000 customers, but we do not consider the consequences Parliament attached to that breach to be reasonable, and we would prefer to negotiate something we regard as more appropriate.
ANZ’s position, reduced to its essentials, is not entirely unlike deciding that a $750 speeding fine seems a touch steep for an empty motorway at 2am, and so offering $30 instead because no one was inconvenienced. That is not generally regarded as a compelling legal submission. It is certainly not a liberty available to the ordinary customer dealing with the same bank.
A Decade of Lobbying
There is, of course, a broader backdrop. The banking sector has spent the better part of a decade, and a good deal of money, lobbying to have the CCCFA rewritten in ways that would operate retrospectively — and specifically, over the last two years, to target a case that had by then already been before the courts for four years.
Industries do not campaign vigorously to rewrite legislation after the fact unless they are concerned the original wording means precisely what it says, and what it was intended to mean.
The courts should have been permitted to interpret the law as it stood in June 2015. If that produced an outcome Parliament subsequently considered unjust, Parliament could adjust the law prospectively — as it did in December 2019.
That is the system working as designed. What is rather less elegant is a powerful industry deciding the statute is inconvenient once it begins applying to them, and then dedicating years to engineering a different result after the fact.
The Central Question
ANZ’s case, reduced to its core, appears to rest on a proposition that the bank’s breach of consumer protection laws affecting more than 100,000 customers should not attract the full consequences Parliament attached to exactly that kind of breach — because ANZ considers those consequences unreasonable.
The plaintiffs, by contrast, say the position is straightforward: a bank breached clear statutory obligations, and now seeks relief from the very consequences Parliament chose to impose specifically to encourage lenders to get it right in the first place.
The outcome of the summary judgment hearing is likely to be one more step in a long and well-resourced piece of litigation, with appeals probable whichever way Justice Venning rules. But while ANZ awaits that decision, the central question, which no amount of contractor blame, remediation argument or proportionality pleading quite manages to answer, is this:
If the law applied to everyone else, why should it not apply to ANZ?
