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How I beat the bank, with a little help from VCAT
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In what could be a legal first in Australia (a UK judge is currently deciding a test case on a similar issue and is expected to deliver his judgment in the coming days), the Victorian Civil and Administrative Tribunal has held that a $40.00 late payment fee imposed was an illegal penalty and therefore unenforceable. The Tribunal also agreed with my submission that the fee amounted to a breach of the Victorian Fair Trading Act. (It should be noted that Citigroup, the respondent to the action, did not attend the Hearing and make any submissions. Citigroup did however pay the claim in full prior to the Hearing). Your correspondent submitted an application to VCAT in late 2007 year seeking a declaration that a late payment fee (of $40.00) which had been directly debited by Citibank was unenforceable. The application can be viewed here. While the legal reasoning is too lengthy for this article (and was largely based upon Victorian Consumer Law Centre solicitor, Nicole Rich’s, excellent Report Into Penalty Fees) it essentially stated that:
The application sought damages of $135.00 for the “illegal” penalty fee plus associated costs. As noted above, Citigroup paid the damages in full prior to the hearing by directly depositing the money in the my credit card account but did not seek to defend the matter in VCAT. While VCAT decisions don’t set precedents in the same way as the Supreme or High Court decision does, the fact that a full-time VCAT member provided a judgment noting that the bank-fee charged was unenforceable and amounted to an unfair term in the contract is an indictment on the conduct of a financial institution. While Citigroup did not defend the matter, the VCAT member would have been within his rights to dismiss the application if he was of the opinion that it was without merit. Based on the Tribunal’s finding, and Citigroup’s willingness to settle the claim, it is possible that any bank customer who receives a bank fee above a nominal amount could adopt the legal reasoning above and seek an immediate refund of the fee imposed, plus any associated costs relating to the application. If financial institutions have to refund a significant percentage of fees imposed they may even stop charging fees at all. Citigroup can appeal VCAT’s decision in the Supreme Court of Victoria. However, in doing so, it would run the grave risk of setting a formal precedent should the Supreme Court uphold the finding of VCAT. |
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12 Comments
now that you have done that for Australia you should look into the fact that when a bank gives you credit it actually has no debt to show for it.
it can lend over ten times what it actually has in the vault so we are paying interest on thin air….
its not only usury buy also the biggest scam ever….
im paying $450 dollars a week repayments on a debt that is just numbers on a computer.
the bank has no risk as it payed me nothing… how is this legal or fair?
http://video.google.com.au/videosearch?q=moneyasdebt.net&ie
Thank you for taking on the bastards over their usurious fees and penalties. Just one thing you overlooked - you ought to have included a substantial fee in your costs (hefty but at the current market rate for good legal advice) to cover the time and the effort you obviously invested in legal research and preparation of your arguments in your submission to the Tribunal. Until more consumers take on corporate greed nothing will change. Exasperated by their incompetence and intransigence, I once told Telstra I’d be sending them a bill for my time if I had to make yet another phone call asking them to correct overcharging errors on my bill. Lo and behold, they fixed them quick smart.
My hero! If this decision stands and becomes a precedent, there will Adam Schwab statues in every town square in Australia. Speaking as someone who has been “double-bunged” by one of the big three (direct debit dishonour fee which then put the account into debit, triggering an overdraft fee) I sincerely hope the bastards’ bowels are turning to water over this.
why when you get a judgment at VCAT do you then have to go to another court to register it for enforcement?
i fink you done good Adam and i fink dat it is interesting dat every ancient holy text right or wrong ever written forbids da act of lending money at interest i mean debt servitude is da new yoke of egypt i fink
Great article and an excellent result against the bank. I recently was obliged to open a David Jones credit card account in order to buy an item at a ‘discount’ price only available to card holders. Before I was used to the routines of operating the account I was hit with a $35 late fee which, as the above article also makes clear bore no relation to any cost incurred by DJs. When I rang DJs to ask for a little forbearance on their part I was transferred to the Collections Department which refused to even listen to my request.
Why do we as consumers continue to put up with the greed and unfairness that corporations try to impose upon us? They like to pretend that they are customer focused but the truth is that they are driven by an increasingly ruthless rapaciousness. Consumers should find the time to make a fuss and make it clear that they are no longer prepared to be meekly exploited.
Inspired by the above article I rang David Jones again (see comment below) and DJs did quickly agree to ‘reverse’ the charge. Card holders of Australia unite! Get on the phone soon to your financial institution and get them to ‘back up’ and reverse all their unfair fees and charges.
This bodes well for credit card users. I salaciously await further details. I challenged Citi two weeks ago, regarding overlimit fees, also a hefty 40 plus dollars.
I had noticed there were no transactions initiated by myself that had actually sent me over my limit, rather their INTEREST charges that did so. The HIDE, then, to charge ME a FEE!
I duly phoned the call centre and put forward my case, quite simply. YOU sent ME over my limit, please explain to me the machinations behind the penalty. After several examples of the obligatory “excuse me sir while I place you on hold”, and one half hearted attempt to convince me that it was indeed one of my transactions responsible for the charge, (one good thing about their online service, you can gain access to months worth of statements in a flash, and argue your case in real time, LOVE IT!) the ever so polite operator informed me that they would oh so kindly reverse the charge…! Credit Card users UNITE!!
Terrific article, Adam - and great work by by VCAT and Nicole Rich. We are really so pssive in the face of this kind of injustice. After previous info. on Crikey successfully challenged a bank charge. Isn’t it time for the Feds to put a cap on this usury?
In january, in anticipation of two weeks holiday I advance paid $5k into a credit card account, knowing I would not be in a positon to pay whilst away. On return I found the bill was $5542, and I paid the excess $542 six days after that months due date. You guessed it, I was hit for $35 late fee, plus $43 interest for Jan, then an extra $62 interest for the following month. Thats $$135 costs for $542 for six days!
The bank insisted their ‘rules’ are sacrosanct and after much philosophic discussions with an ever escalating range of supervisory bods, the two interest payments were waived, with the final daft bint informing me that there was no way the $35 would be waived and it ‘was only fair’for the banks trouble. They did manage to instantly raise the credit limit in the same call….the pain includes the wasted life we have to expend on ringing these institutions…….they rely on our benign indifference….I agree …card holders unite……!
At the risk of wearing out my welome I would like to recommend the Nicole Rich document which is linked to in the above article. It is an excellent resource for anyone looking for a bit of firepower against their financial institution when arguing against their unreasonable fees and charges.
What a victory - well done!!! You must feel great.
I’ve been too mad for too long over these kinds of fines. I cant believe I willingly and knowingly signed up for both exorbitant interest rates AND late fines on my credit cards.
My solution has been to get automatic transfers set up by the bank to cover variable outstanding balances on all my cards at the end of each month! It works a charm! So now the bank not only misses out on its $30++ freebie from me each month, but it has to transfer funds between 4 different accounts - free of charge!! LOVE IT!!