The Australian Competition and Consumer Commission (ACCC) has appealed against the recent decision by Justice Dowsett in the Federal Court dismissing the ACCC’s allegations that Australia and New Zealand Banking Group Limited (ANZ) had breached the price fixing provisions of the Trade Practices Act 1974 (the Act), now Competition and Consumer Act 2010.

The ACCC had alleged that in 2004 ANZ had required Mortgage Refunds Pty Ltd (Mortgage Refunds) to agree to limit the amount of the refund it could provide to its customers in respect of arranging ANZ home loans.

It was alleged that 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.

The ACCC alleged that this amounted to price fixing because ANZ and Mortgage Refunds were competitors in the market for the provision of loan arrangement services.

On 18 November 2013, the Federal Court found that ANZ did not participate in a market for the provision of loan arrangement services and consequently that ANZ and Mortgage Refunds were not competitors in this market.  As a result, ANZ’s conduct was found not to amount to a price fixing agreement and Justice Dowsett dismissed the ACCC’s application.

Background

The ACCC alleged that in 2004 the ANZ Bank sought to limit the amount of a refund a mortgage broker, Mortgage Refunds Pty Ltd, could provide to its customers in respect of arranging ANZ home loans, in contravention of section 45 of the Act, by operation of section 45A which deems price fixing agreements to be in breach of section 45.

The Australian Competition and Consumer Commission instituted proceedings against the ANZ Bank in August 2007 in the Brisbane registry of the Federal Court of Australia.

The trial took place between 26 March and 5 April 2012.