The High Court has given the class action claimants in their action against the ANZ Bank NZ and the ASB consent to proceed on an ‘opt out’ basis, meaning everyone affected is included unless they opt out of the litigation-funded lawsuit.
The claim is funded by LPF in New Zealand and CASL in Australia with around 150,000 people included in the suit. The ASB action involves four plaintiffs who represent customers with loans to the bank.
Class Action solicitor Scott Russell has described the High Court decision that the multi-million-dollar class action against ANZ and ASB Banks can be conducted as an opt-out claim as significant.
The claim alleges that the Banks have failed to refund more than 150,000 customers’ interest and fees they were not entitled to charge due to breaches of their disclosure obligations.
“The High Court has agreed with our position that over 150,000 ANZ and ASB home and personal loan customers who were affected by their Bank’s alleged failure to comply with the law should be part of the class action.
“The approval by the High Court is important because it provides a high level of certainty that the case will now proceed through the court system.
“Opt-out actions work for claims such as this one where there are a lot of consumers who all have the same interest in the legal action, yet for different reasons, they may not realise or understand that they are eligible to participate. In addition, for an individual, it is highly unlikely they would ever be able to afford to take a legal claim against a well-funded defendant like a bank.
“It was our preference to conduct the claim as opt-out so that as many customers as possible could participate in the claim and the Court has agreed based on the precedent set in the Supreme Court ruling in Southern Response v Ross  case,” he said.
The High Court has agreed to grant a Common Fund Order, inviting an application to be made when the Banks’ liability has been determined against the representative plaintiffs.
“Common fund orders provide transparency around the terms of funding, including legal costs and funder commissions. The Court’s approval means ANZ and ASB customers can make an informed assessment of the claim and it also reduces the potential for unnecessary challenges by the Banks and their insurance companies to delay the proceedings which only adds time and cost of the case but doesn’t address the merits of the claim,” Russell said.