Golly Gosh, Banks engaging in Unconscionable Conduct? ASIC just discovers the bleedin' obvious? Whatever next?
ASIC broadens BBSW case
Australian Financial Review Jul 25 2016 12:15 AM
James Eyers
The corporate regulator has expanded its legal case against ANZ Banking Group and Westpac Banking Corp, filing an amended statement of claim in the Federal Court on Friday afternoon that points to a broader number of possible victims.
Sources close to the case said the revised wording of one part of the unconscionable conduct claim against both banks better reflects the harm the regulator alleges was caused to customers and counterparties of the banks.
The Australian Securities and Investments Commission is now arguing that losses were sustained by various "at-risk counterparties" who made payments to the banks or other counterparties referencing the bank bill swap rate (BBSW).
The regulator now alleges losses were sustained not only on the days that the BBSW was set at an allegedly improper rate, but also on subsequent days, when various payments were set based on the BBSW.
The change brings the formulation of the ANZ and Westpac claims in line with the similar claim filed against National Australia Bank.
The ultimate assessment of who was damaged, and by how much, from the banks' alleged misconduct will be a highly complex task, lawyers say. Quantifying damages typically takes place only after the liability has been established, and may also be the subject of separate proceedings that may be brought by plaintiff law firms on behalf of victims, meaning their determination could be years away.
The amendments by ASIC delayed the filing of defences by ANZ and Westpac. They will now be filed in early August.
The next case management hearing will be held before Federal Court judge Jonathan Beach on August 22 in Melbourne.