ACCC v ANZ Ltd (FCAFC)
Federal Court of Australia (Full Court)
Chief Justice Allsop and Justices Davies and Wigney
ACCC v Australia and New Zealand Banking Group Limited [2015] FCAFC 103 (31 July 2015)
Related judgment
ACCC v Australia and New Zealand Banking Group [2013] FCA 1206 (18 November 2013) (Trial)
Issues: purpose, effect or likely effect of fixing, controlling or maintaining a discount, allowance, rebate or credit - effect of lessening competition - market definition - whether parties in competition - whether refund was a rebate
Catchwords
COMPETITION – whether respondent bank engaged in conduct that had purpose or effect, or was likely to have purpose or effect, of fixing a rebate – where mortgage broker, Mortgage Refunds Pty Ltd offered refunds to borrowers based on value of loan if successful in applying for loan – respondent bank wrote to finance aggregator to prevent Mortgage Refunds Pty Ltd to limit amount of refund offered on the bank’s loans – whether conduct had effect of lessening competition between respondent bank and mortgage brokers – whether respondent bank’s mortgage division was in competition with mortgage brokers – where market pleaded by ACCC was for the provision of “loan arrangement services” – whether mortgage brokers and respondent bank both provided loan arrangement services and thus competed in the same market – consideration of features of mortgage broking business model
COMPETITION – indicia of competition between banks and mortgage brokers – consideration of hypothetical monopolist test (small but significant non-transitory increase in price, “SSNIP”) – whether banks and mortgage brokers engaged in rivalrous behaviour – whether banks and mortgage brokers believed themselves to be in competition
Legislation
Trade Practices Act 1974: section 45A, s 45(2)(a)(ii) and s 45(2)(b)(ii)
Overview
The ACCC alleged that, in 2004, ANZ had required Mortgage Refunds Pty Ltd to agree to limit the amount of refund it could provide in respect of arranging ANZ home loans and that this, as a result, 'ANZ made and gave effect to an agreement where it would only allow Mortgage Refunds to continue to be accredited to offer ANZ mortgage products if it agreed to limit any refund it paid to its customers to $600, which would allow ANZ branches to match the deal if they chose to waive the ANZ loan establishment fee.' This, the ACCC alleged, constituted price fixing under s 45 (with aid of s 45A) of the then Trade Practices Act 1974 (now Competition and Consumer Act 2010), because 'ANZ and Mortgage Refunds were competitors in the market for the provision of loan arrangement services.' (see ACCC press release)
The Federal Court dismissed this claim, finding that ANZ and Mortgage Refunds were not competitors and, as a result, the conduct did not constitute price fixing.
Links
Appeal
ACCC v Australia and New Zealand Banking Group Limited [2015] FCAFC 103 (31 July 2015) (AustLII)
ACCC v Australia and New Zealand Banking Group Limited [2015] FCAFC 103 (31 July 2015) (Jade)
Decision at first instance