The question of whether bank exception fees are capable of being penalties at common law 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 Federal Court of Australia has now made an order that the further hearing of the proceedings in Andrews be adjourned to a date to be fixed after the hearing and determination of Paciocco v Australian and New Zealand Banking Group Limited, which is another representative action for which three weeks trial has been allowed in December.

Research: Shannon Adams