multimillion-dollar class action that has been running through the hierarchy of
courts for the past 6 years between ANZ bank and 43,500 ANZ customers has today
finally been decided once and for all.
main issue that was the subject of the proceedings was the legality of credit
card late payment fees.
customers took ANZ to Court on the basis that the late payment fees for credit
cards are extravagant, unenforceable and amounted to unconscionable conduct.
2014 the Federal Court found that some of the bank’s charges were illegal as
the late payment fee for a credit card was $35.00. It is now known that the
actual cost to the bank was often as little as 50 cents.
in 2015 the full Federal Court reversed this decision. As a consequence, the
solicitors for the customers of ANZ sought leave to appeal to the High Court of
2015, Mr Watson, solicitor for the ANZ customers, stated that the decision to
reverse the finding that the bank’s charges were illegal,
“runs the risk of turning the doctrine
of penalties and the statutory provisions on which we rely into empty vessels
devoid of any practical or meaningful content, and significantly reducing the
protection for all consumers in Australia.”
the High Court of Australia handed down its decision over the matter.
was ruled that the proceedings brought by the 43,500 ANZ customers were to be
dismissed and that ANZ are able to charge customers fees, as well as interest,
for the late payment of credit cards. It was found that the charges were not
established to be “penalties” and that the bank was entitled to recover losses
that they sustained due to late payments.
big banks including Commonwealth Bank, Westpac and St George also faced similar
proceedings as ANZ. Perhaps unfortunately for NAB, a settlement worth $6.6
million in compensation for customers was reached before today’s decision.
light of the decision today, banks can be comforted in charging their customers
who are late in the payment of their fees.
decision is also likely to be seen as a big win for telecommunication and
energy companies in dealing with customers who are late in their payments.
Government authorities, such as Local Council or the NSW State Government, are
able to acquire privately owned land for public purposes.
examples in NSW include compulsory acquisitions of both residential commercial
properties for the construction of WestConnex and the Sydney Metro.
headlines are true, the Sydney Motorway Corporation Pty Limited, the body
responsible for delivering the WestConnex motorway is on the verge of
announcing that further homes and businesses will need to be acquired for the
project as it expands.
Homeowners who may
have been just on the brink of having their homes acquired, may now find
themselves issued with a Proposed Acquisition Notice.
acquisitions due to major government projects, there are other examples that
may hit more closely to home when a Local Council acquires a property for the
purposes of performing its functions such as upgrading the sewerage and
stormwater drainage facilities in an area. These acquisitions can be equally as
surprising and distressing.
What’s the process?
Once an authority
has decided to acquire a property, the Land
Acquisition (Just Terms Compensation) Act 1991 (NSW) provides the mechanism
for determining the amount of compensation to be paid to a landholder.
This Act must be complied with.
agreement is sort to be reached between the Landholder and the Acquiring
Where this is not
possible, the acquiring authority has the power to compulsorily acquire the
land for a public purpose.
Where land is to be
compulsorily acquired, the Valuer General is responsible for independently
determining the amount of compensation payable by the Acquiring Authority.
To assist the
Valuer General, both parties generally obtain independent valuations by experts
to support their side. Depending on the type and location of the property, the
number of experts may range from one real estate valuation to numerous opinions
from experts such as accountants, engineers and environmental scientists.
Getting the right advice
from an experienced lawyer is essential for maximising ones claim.
lawyer will be able to provide guidance to ensure that an experienced valuer is
retained. It critically important that you use a valuer who is capable of
preparing a robust valuation that will be difficult for the acquiring authority
benefit is that reasonable legal costs and expert costs are likely to be paid
by the Acquiring Authority.
You can then use
the services of seasoned professionals with the peace of mind that you will be
obtaining more than the initial offer made by the Acquiring Authority without
professionals taking a large cut.
If you have been
issued with a Proposed Acquisition Notice or want to know more about the
process, please contact Kim Glassborow, Partner at G&B Lawyers on M: 0481
287 528 or email@example.com for professional and experienced advice.
Or perhaps the
better question is, do you have a will that articulates exactly how you want
your estate to be distributed should you pass away?
published by news.com.au on 18 July 2016 describes the story of a mother who
lost her son whilst he was at work. During the family’s grieving period, it was
found that the son did not have a will and that the immediate family had no
entitlement to the deceased’s workers’ compensation.
was someone else who did have a claim.
Magistrates Court awarded the workers compensation in the amount of $200,000 to
a lady who proved to the Court that she was a dependent of the deceased.
deceased’s family had never heard of the existence of the lady, evidence
compelled the Court that she was financially dependent on the deceased.
Evidence included that the pair had plans to spend their lives together, they
were domestic partners and had been in a relationship for eight months.
Contrary evidence was given by the deceased’s landlord and a friend of the
deceased to the effect that neither had met or seen the lady before. However,
the compensation was solely awarded to the lady.
The family of
the deceased will never have any certainty as to how the deceased would have
wanted his estate to be distributed. It had probably never crossed any of their
minds that they needed to prepare for something so tragic.
Whether you are
at the beginning of your working life or in the process of winding down, giving
a small amount of time to formalising your intentions is a small price to pay
for giving your family certainty as to what your final intentions may be.
experience at G&B Lawyers, wills are generally not hard to prepare and can
take as little as a few hours when you have clear intentions in your mind.
Should you wish
to either create or update your will, contact Nathan Buckley, Partner at
G&B Lawyers on 0411 067 367 or by email at firstname.lastname@example.org.
Corporation (SWC) is wholly owned by
the NSW Government.
does not make SWC immune from environmental consequences of management
oversights and the inevitable knock on the door from the NSW Environment
Protection Authority (EPA).
entered into an enforceable undertaking with the EPA to pay $200,000 to the
Parramatta River Catchment Group for the purpose of improving the health of the
Parramatta River catchment which was polluted due to SWC’s failure to properly
maintain its plant and equipment.
undertaking is one approach that the EPA may use when there has been a serious
breach of legislation.
Section 253A of the Protection of the
Environment Operations Act 1997 (NSW). In essence, an enforceable
undertaking is a written undertaking by a company or an individual to take
action to deal with an actual or potential breach of environmental protection
person or company who entered into the enforceable undertaking breach any of
its terms, the EPA has the power to apply to the Court for a number of orders. Some of the orders that the EPA can apply for
order directing the person to comply with the undertaking;
order directing the person to pay to the State an amount not exceeding the
amount of any financial benefit that the person has obtained (directly or
indirectly) and that is reasonably attributable to the breach; and
order that the Court considers appropriate.
enforceable undertaking is just one tool in the box that the EPA can use to
address actual or potential breach of environmental protection legislation.
that may be used by the EPA include:
-Show cause letter;
-Vary, suspend or revoke an Environment
-Pollution reduction program;
-Mandatory environmental audit;
-Penalty notice; and
would want to avoid a situation where they are prosecuted by the EPA for breach
of environmental protection legislation.
If this is not
possible, mitigating one’s loss is the next best option.
To obtain legal
assistance for dealing with and responding to EPA notices, contact Kim
Glassborow, Partner at G&B Lawyers.
Increasing the courts power
to impose higher financial penalties on environmental offenders
Under section 249 of
the Protection of the Environment
Operations Act 1997 (NSW) (POEO Act)
the court has the power to
“order the offender
to pay, as part of the penalty for committing the offence, an additional
penalty of an amount the court is satisfied, on the balance of probabilities,
represents the amount of any monetary benefits acquired by the offender, or
accrued or accruing to the offender, as a result of the commission of the
means monetary, financial or economic benefits.
The amount that the
court may order an offender to pay is not subject to any maximum amount.
However, the regulations may prescribe a protocol to be used in determining the
amount that represents the monetary benefit acquired by the offender.
Currently there is
no protocol identified in the regulations that deals with monetary benefits.
However, this may be
about to change.
The NSW Environment
Protection Authority (EPA) is
looking to develop a protocol, through consultation with industry in the near
future. This will include the creation of a calculator for determining the
quantity of the monetary benefit.
This could mean that
courts may be able to impose much higher penalties on offenders depending on
the circumstances of the offence.
Recent example that may
have been caught
In 2015 the NSW Land
and Environment Court found that a former waste operator and two of his
companies were guilty of offences for the unlawful transportation of waste and
for using a property as an unlawful waste facility.
See Environment Protection Authority
(Prosecutor); Foxman Environmental Development Services (Defendant); Botany
Building Recyclers Pty Ltd (Defendant); Phillip Foxman (Defendant) 
NSWLEC 105 at
The commission of these
offences caused the Defendants substantial financial gain.
The introduction of
a protocol within the regulations may, if drafted appropriately, increase the
courts power to impose higher financial penalties on environmental offenders
who benefit from the commission of an offence.
At this early stage,
there still remains the next important question of what will happen with any
money that is obtained through the potential protocol.
If you would like to discuss any aspect of this, please contact Kim Glassborow (Partner) G&B Lawyers on M: 0481 287 528.