The question of whether bank exception fees were unlawful penalties or lawful service fees is in issue in the representative action of Andrews v Australian and New Zealand Banking Group Limited.

On 6 September 2012 the High Court of Australia made a declaration to the effect that certain fees were capable of characterisation as penalties even though they were not charged for a breach of contract (see note here ).

The trial in the Federal Court has concluded and a judgment is expected by April 2014.