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O'Brien v ANZ

O'Brien v ANZ

Case [2025] VSC 389 3 July 2025

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Costs

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

GROUP PROCEEDINGS LIST

S ECI 2020 03365

DANIEL CHRISTIAN O'BRIEN	Plaintiff
v
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522)	First Defendant
MACQUARIE BANK LIMITED (ACN 008 583 542)	Second Defendant

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JUDGE:	Harris J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 May 2025
DATE OF JUDGMENT:	3 July 2025
CASE MAY BE CITED AS:	O'Brien v ANZ & Anor
MEDIUM NEUTRAL CITATION:	[2025] VSC 389

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GROUP PROCEEDING – Application for approval of settlement of group proceeding – Approval of settlement under s 33V of the Supreme Court Act 1986 (Vic) – Whether settlement distribution scheme is fair and reasonable – Settlement distribution between classes of group members – Deductions from the settlement fund – Whether group costs order should be varied – Settlement approved – Supreme Court Act 1986 (Vic) Part 4A, s 33V.

PRACTICE AND PROCEDURE – Confidentiality orders.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J Stoljar SC with D Fahey	Maurice Blackburn Lawyers
For the Defendants	E Dias	Herbert Smith Freehills

TABLE OF CONTENTS

The application for settlement approval and the issues for consideration............................ 1

The nature of the claims in the proceeding.................................................................................. 3

Relevant procedural background including the group costs order......................................... 5

Group costs order.......................................................................................................................... 5
Boomerang Claims registrations................................................................................................. 7
Reinstatements and late registrations...................................................................................... 10

Confidentiality orders..................................................................................................................... 11

Principles for considering appropriateness of the settlement................................................ 14

Proposed settlement........................................................................................................................ 15

Group member participation........................................................................................... 17
Modelling of the group losses......................................................................................... 18
Settlement distribution between group members........................................................ 19

Objections to settlement................................................................................................................. 20

Fairness of the settlement............................................................................................................... 23

The reasonableness of a compromise....................................................................................... 23
The reasonableness of the settlement sum.............................................................................. 24
Reasonableness of other aspects of the settlement distribution process............................. 25
Fairness between group members............................................................................................ 26

Deductions from the settlement sum........................................................................................... 29

The legal costs and the group costs order............................................................................... 29
Considerations on whether the group costs order should be varied......................... 30
The reasons for making the group costs order.............................................................. 31
The plaintiff’s submissions............................................................................................... 32
There is no basis on which the group costs order should be varied.......................... 34
Conclusion on group costs order....................................................................... 38

The costs of the settlement administration.............................................................................. 39
Maurice Blackburn as Scheme Administrator................................................. 39
Costs of scheme administration......................................................................... 40

Representative plaintiff payment to Mr O’Brien.................................................................... 41

Appropriate orders........................................................................................................................... 43

HER HONOUR:

The application for settlement approval and the issues for consideration

This is a representative proceeding brought by Mr O’Brien on behalf of group members who claim to have suffered loss by reason of having entered into car loans through car dealerships in respect of which Australia and New Zealand Banking Group Limited (ANZ) was alleged to have paid the dealers an undisclosed ‘flex commission’.

The parties have resolved to settle the proceeding on the basis that there are no admissions and no acceptance of liability by the defendants. The parties now seek approval of the settlement pursuant to s 33V of the Supreme Court Act 1986 (Vic). The settlement sum is $85 million to be distributed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading O'Brien v ANZ

Details

AGLC: O'Brien v ANZ [2025] VSC 389
Case: [2025] VSC 389
Decision Date: 3 July 2025

CaseChat Overview and Summary

The matter of O'Brien v ANZ involved an application by the respondent, ANZ, for the approval of a settlement of a group proceeding. The case was heard in the Supreme Court of Victoria. The group proceeding was a collective action brought by the applicant, Mr O'Brien, on behalf of himself and a class of other individuals who had been issued with credit cards by ANZ. The dispute centred on whether ANZ had breached the Australian Consumer Law by charging excessive fees and interest rates to credit card holders.

The legal issues before the court included whether the settlement distribution scheme proposed by the parties was fair and reasonable, and whether the deductions made from the settlement fund were justified. The court also had to consider whether the order for the payment of group costs should be varied. These issues were critical in determining whether the settlement was in the best interests of all class members.

The court examined the terms of the settlement, including the distribution of funds between different classes of group members and the deductions made from the settlement fund. It found that the settlement was fair and reasonable, taking into account the complexity and risk of the litigation, the costs of proceeding with the action, and the benefits of the settlement to the class members. The court also concluded that the deductions from the settlement fund were justified and that the order for the payment of group costs should not be varied. The settlement was approved under section 33V of the Supreme Court Act 1986 (Vic). Additionally, the court made an order for confidentiality, preventing the parties from disclosing the terms of the settlement.

Orders