ASIC has commenced proceedings in the Federal Court against Australia and New Zealand Banking Group Ltd (ANZ) for breaches of the Credit Act arising from referrals through its home loan ‘introducer program’ and from unlicensed individuals outside the introducer program. The program involved home loan referrals to ANZ from third party “introducers” from various professions, such as cleaners and real estate representatives.
Introducer programs received considerable criticism in the Financial Services Royal Commission.
ASIC alleges that between June 2016 and March 2018, ANZ breached consumer protection credit laws by accepting customer information and documents from introducers and other unlicensed individuals when this was not allowed. ASIC also alleges that some of the documents provided were fraudulent.
ASIC Deputy Chair Sarah Court said ‘ASIC is concerned that as a result of this conduct some loans may have been granted by ANZ based on false information and some consumers may have entered into home loans that were beyond their ability to pay. If banks are going to accept referrals of consumers seeking a home loan from unlicensed individuals, who receive commission payments for the referrals, they need to make sure they have the right systems in place to properly process those referrals.’
From 2015 to June 2020, more than 50,000 loans were referred to ANZ through the introducer program, resulting in lending of more than $18.5 billion. In September 2018, the introducer program contributed to approximately 10% of all home loans sold by ANZ’s branch network in Australia.
ASIC also alleges between November 2015 to June 2020, ANZ breached its general conduct obligations as an Australian Credit Licence holder by failing to take reasonable steps to ensure its representatives did not conduct business with unlicensed third parties and thereby failed to engage in credit activities efficiently, honestly and fairly.
ASIC is seeking declarations, pecuniary penalties and other orders, including for ANZ to engage an independent expert to conduct a review of ANZ’s existing home loan customer referral arrangements.
The proceeding will be listed for directions on a date to be determined by the court.
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Background
The introducer program allows individuals or entities to enter an agreement with ANZ that allows them to refer customers looking for a home loan to the bank. The introducer receives a commission if the home loan is granted.
Last year a penalty of $15m was imposed on the National Australia Bank (NAB) for contravening National Consumer Credit Protection laws in connection with its introducer program (20-247MR). Moneysmart.gov.au has information about home loans and how to work with a broker to get a better home loan deal.
Editor's note:
The first case management hearing has been listed before Justice O’Bryan on 4 February 2022.
Editor's note 2:
On 3 February 2022, the Court ordered that the hearing listed on 4 February 2022 be vacated. The matter has been listed before Justice O’Bryan for a case management hearing on 25 March 2022.
Editor's note 3:
On 25 March 2022, the parties appeared at a case management hearing before Justice O’Bryan. The matter has been listed for a further case management hearing on 13 May 2022.
Editor's note 4:
On 13 May 2022, the parties appeared at a case management hearing before Justice O’Bryan. The matter has been listed for a further case management hearing on 29 September 2022.
Editor's note 5:
On 19 August 2022, the case management hearing on 29 September 2022 was adjourned until 27 October 2022.
On 29 June 2022, the parties attended mediation. The mediation was adjourned until 30 August 2022. On 30 August 2022, the parties attended mediation.
On 25 October 2022, the case management hearing on 27 October 2022 was vacated, with the Court instead making timetabling orders with the consent of the parties. The proceeding will be listed for a final hearing on 10 March 2023 before Justice O'Bryan for an estimate of half a day.
Editor's note 6:
On 10 March 2023, ANZ was penalised $10 million by the Federal Court in relation to its Home Loan Introducer Program (Introducer Program). See 23-059MR.