ACCC v ANZ Ltd (FCA)
Federal Court of Australia
Justice Dowsett
ACCC v Australia and New Zealand Banking Group Limited [2013] FCA 1206 (18 November 2013)
Related judgment
ACCC v Australia and New Zealand Banking Group Limited [2015] FCAFC 103 (31 July 2015) (Appeal) (Appeal was dismissed)
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 – appeal – whether conduct of respondent bank entering into an agreement had the purpose, effect or likely effect of fixing, controlling or maintaining a discount, allowance, rebate or credit pursuant to s 45A of the Trade Practices Act 1974 (Cth) – where mortgage broker, Mortgage Refunds Pty Ltd, offered refunds to borrowers if borrower successful in applying for loan – where respondent bank wrote to finance aggregator to limit amount of refund offered by Mortgage Refunds Pty Ltd in relation to respondent bank’s loan products – whether respondent bank’s conduct had the effect of lessening competition between respondent bank and mortgage brokers pursuant to s 45(2)(a)(ii) and s45(2)(b)(ii) of the Trade Practices Act 1974 (Cth) – where market pleaded by ACCC was for the provision of “loan arrangement services” – characterisation of services provided by the banks and mortgage brokers – whether respondent bank and mortgage brokers both provided loan arrangement services and accordingly competed in a market for the supply of loan arrangement services – consideration of features of mortgage broking business model
COMPETITION – cross-appeal – whether refund offered by Mortgage Refunds Pty Ltd could be properly characterised as a rebate in relation to loan arrangement services – construction of s 45A of the Trade Practices Act 1974 (Cth)
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. An appeal by the ACCC was dismissed.
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