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Update about the class actions (March 2024)

  • Trial date
    On 8 March 2024, the Court ordered that all three class actions be listed for trial on 14 October 2024, for an 8-week hearing, before the Honourable Justice Dixon of the Victorian Supreme Court. 

  • What does this mean? 
    The joint trial involves the Court hearing evidence and submissions about the claims of the representative plaintiffs and factual and legal issues common to all group members, such as whether the Flex Commission arrangements constituted “unfair conduct”. Group members are not required to give evidence at, or to attend, the hearing
       
    • If you ‘recorded your interest’ in the class action after the respective deadline, you  may now be eligible for compensation if the case settles at a mediation in the future or if it is successful at trial. There is nothing further you need to do at this stage. 
    • If you have previously registered with us or ‘recorded your interest’, there is nothing further you need to do. You may be eligible for compensation if the case is successful at trial, or any future mediation.
    • If you have not yet registered your interest with us and think you might be eligible, it is not too late and we encourage you to do so.  See further details on eligibility and how to register below. 
       
  • Future updates
    Future updates on the class actions will be published on this website and our social media pages. If there are any major developments, such as if the matter settles before trial, we will send an update to registered group members about the next steps.

If you have any other queries, be see the FAQ section of this webpage.

If you have not yet registered, we encourage you to do so if you had a consumer car loan arranged through a dealer with:

  • ANZ (‘Esanda’) between 1 January 2011 and 31 March 2016;
  • Macquarie Leasing between 1 March 2013 and 31 October 2018; and/or
  • Westpac & St George between 1 March 2013 and 31 October 2018. 

It does not cost you anything to register your interest and you will never be asked to pay any costs out of your own pocket. 

If you have already registered or recorded your interest, there is nothing further you need to do. We will be in contact with any key updates in the class action as they arise.

More information can be found in the FAQ section of this page.

About the Class Actions

The Flex Commission class actions are three class actions about the ‘flex commissions’ paid to car dealers by Westpac Banking Corporation and St George Finance, Australia and New Zealand Banking Group Limited (Esanda), and Macquarie Leasing Pty Ltd in relation to consumer car loans.

Flex commission arrangements allowed car dealers to set the interest rate and loan term on car loans. The higher the interest rate and the longer the loan term, the greater the commission received by the dealer. These arrangements were banned by ASIC on 1 November 2018 and a subject of inquiry at the Financial Services Royal Commission.

The plaintiffs, on behalf of group members in these class actions, allege that flex commissions were unfair and unlawful and resulted in consumers paying higher interest rates on their car loans than they otherwise would have. As a result, they are claiming compensation and other relief for those who have been affected.

You can find more information about the flex commission arrangements and eligibility criteria in the FAQs below.

Frequently asked questions about Flex Commission Class Actions updates

Eligibility criteria 

You are a group member if you had a consumer car loan arranged through a dealer on which a flex commission was paid with:

  • ANZ (‘Esanda’) between 1 January 2011 and 31 March 2016;
  • Macquarie Leasing between 1 March 2013 and 31 October 2018; and/or
  • Westpac & St George between 1 March 2013 and 31 October 2018.

Over 1 million Australians are potentially eligible for these class actions. Flex commissions were paid in relation to most, if not all, consumer car loans during these time periods.

PLEASE NOTE:

  • Car loans that started with Esanda and then were transferred to Macquarie in 2016 are part of the ANZ (Esanda) Car Loan Class Action. 
  • Car Loans with Bank of Melbourne or BankSA were arranged under Westpac or St George’s credit licence.
  • It does not matter whether or not you have paid off the car loan and whether or not you still have the car you paid for with the car loan.
  • This class action covers car loans on new and used vehicles.
  • This class action only covers consumer car loans arranged through car dealers. It does not cover loans arranged directly with the banks, novated leases, business loans or goods loans.

If you have previously registered or recorded your interest on our registration portal at www.mauriceblackburn.com.au/flex-registration, then you have successfully registered.

If you received an email confirming your registration and/or you have previously received updates from our team (including the last update in January 2024) then you have registered.  You do not need to do anything else.

If you are otherwise uncertain if you have registered, you can register here – see the FAQ below for more information.

Please note, your registration does not automatically mean that you will be eligible to receive compensation, as eligibility will be assessed and determined at a later stage (if the case is successful).

If you have not yet registered your interest with us and think you might be eligible, it is not too late.

During the registration process, you will be asked to provide your name, date of birth and contact information, and the loan details relevant to your claim (including the lender, the date of the loan, the vehicle registration number, the brand of vehicle and the loan account number). If you do not know all of these car loan details, you will be able to select ‘unknown’ to continue with the registration.

Please note: 

  • You can still record your interest if your personal details, including your legal name have changed since you received your car loan. Please enter your current contact details so that we can contact you. However, for verification purposes, please enter the name which is on your loan contract/on the Notice.
  • You can still register if, since obtaining your car loan, you have moved overseas or interstate.
  • If you entered into a joint loan, all people named on the loan should enter a separate registration.
  • Executors or administrators of deceased estates can register on behalf of the estate.

If you are having any difficulties registering on our website, please wait ten seconds and refresh the page.

Your registration does not automatically mean that you will be eligible to receive compensation, as eligibility will be assessed and determined at a later stage (if the case is successful).

No. We do not need any documents at this stage. We expect that we will be able to get all the information we need from your relevant lender when and if the time comes, however please do keep the documents in a safe place if you have them in case we need them at a later stage.

At this stage, you do not need to send us further information about your car loan or your experience getting your car loan.

You do not need your car loan documentation or car loan information to register. 

Unfortunately we are unable to provide advice relating to individual car loans. At this point in the class action, only the lead plaintiff’s claim is considered by the court.

You are still required to keep paying your loan repayments if your car loan is ongoing. Your registration in this class action does not alleviate your responsibility to continue to make car loan repayments or to otherwise pay off any debt with your lender. Whether or not an individual will receive compensation (if the class actions are successful) is dependant on their individual car loan circumstances. You should not rely on any potential compensation in relation to any outstanding debt you may have with your lender.

If you want legal advice about individual legal issues, we recommend you seek advice from the following services:

  • A Community Legal Centre (CLC) - Enter your postal address into the CLC website and find your local centre
  • National Debt Hotline (Financial Rights Legal Centre) - Visit the Financial Rights website or call 1800 007 007
  • Australian Financial Complaints Authority (AFCA) - Visit the AFCA website or call 1800 931 678
  • A private solicitor – see the Law Society pages of the relevant State or Territory where you live.

While our team is focused on preparing for trial, future updates on the class actions will primarily be published on our website. If the matter settles before trial, we will contact you at that stage.

 If you have already registered with or recorded your interest in the class action, there is nothing further you need to do. Please check this website and follow our social media to be alerted of updates.  

Please send an email to Flexclassaction@mauriceblackburn.com.au with your new contact details. Make sure you put “Change in Contact Details” in the subject line of your email.

There is nothing further you need to do. We have all the information we need. You may wish to periodically review this website and our social media for updates. Otherwise, if there are any major updates, such as if the case is successful at trial or at any future mediation, we will send registered group members an update. There is nothing further you need to do at this stage.  

You can register in the class action:

  • whether or not you have paid off the car loan, refinanced the car loan or no longer have the car you paid for with the car loan.
  • if the car loan was for a new or used vehicle.
  • regardless of which state or territory the car loan was entered into.
  • if you don’t have your car loan documentation or car loan information. .
  • if your personal details, including your legal name have changed since you received your car loan. Please enter your current contact details so that we can contact you. However, for verification purposes, please enter the name which is on your loan contract.
  • if, since obtaining your car loan, you have moved overseas or interstate.
  • if you had a consumer car loan arranged anywhere in Australia.
  • if you entered into a joint loan – make sure all people named on the loan enter a separate registration.
  • if your car loans started with Esanda and then were transferred to Macquarie in 2016 – these are part of the ANZ (Esanda) Car Loan Class Action.

Please note: the class actions do not cover loans arranged directly with the banks or brokers, or novated leases, business loans and goods loans.

We are unable at this time to inform every group member of how much compensation they may receive. This depends on a number of factors, including:

  • the terms of your loan contract including the interest rate charged; and
  • the terms of any settlement reached or judgment made in relation to the claims

Please note, your registration does not automatically mean that you will be eligible to receive compensation, as eligibility will be assessed and determined at a later stage (if the case is successful).

It does not cost you anything to record your interest and you will never be asked to pay any costs out of your own pocket.

The Supreme Court of Victoria has made a group costs order in each of the three proceedings. This means that if the class action in which you are a group member is successful (by judgment or settlement), any legal costs payable to Maurice Blackburn has been set as 24.5% of the total monetary amount achieved at mediation or awarded by the Court. It does not come out of group members’ own pockets.

The Court will also need to approve any amount paid to Maurice Blackburn for the work that they have done as fair and reasonable.

The Court may change the rate of the Group Costs Order in the future, for example, if it would result in Maurice Blackburn being paid an excessive amount of money for the work they have performed.

Maurice Blackburn will bear the costs if the class action is unsuccessful.

A flex commission is a payment made by a lender to a car dealer depending on the interest rate and length of a car loan that the dealer arranged for the lender with a consumer. The flex commission increased as the interest rate and/or term of the car loan increased.

In general, the more a consumer paid in interest, the higher the flex commission would be.

The plaintiffs allege that this arrangement incentivised car dealers to increase the interest rate and/or the length of car loans, in order to increase their flex commission, and consequently, consumers paid more than they otherwise would have.

How did it work?

When a consumer bought a car and arranged their car finance through a car dealership, the car dealer set the rate of interest on a car loan at or above a base rate and below any cap set by the lender.

The car dealer had discretion to increase or decrease the interest rate without reference to the risk profile of the car loan or consumer. The lenders also benefited from the commission because the “flex amount” was shared between the bank and the car dealer.

The plaintiffs claim that consumers were not told or informed of the existence of the Flex Commission, how it was calculated, or the amount paid in relation to their car loan when they should have been.

Many borrowers knew nothing of these arrangements. Lenders did not publicise them; dealers did not reveal them. The dealer’s interest in securing the highest rate possible is obvious. It was the consumer who bore the cost.

(Financial Services Royal Commission Final Report 2018)

The plaintiffs say flex commissions were unlawful because they are in breach of legislation prohibiting “unfair or dishonest conduct” and “misleading and deceptive conduct”.

For all the borrower knew, the interest rate the dealer quoted had been fixed by the lender. But, whenever the dealer quoted a rate larger than the base rate, the dealer was acting in its own interests.

Financial Services Royal Commission Final Report, 2018

The plaintiffs also claim that interest paid on the car loans was “money had and unjustly received” and caused “unjust enrichment” of the defendants.

The effect of the practice was that consumers could be charged significantly different interest rates from the same intermediary, depending on their ability to negotiate that rate. For example, the same car dealer on the same day could set the interest rate at 6.5% for one consumer and 15.15% p.a. for another consumer even though they bought the same model of vehicle for similar value.

The plaintiffs allege that car dealers are the representatives of the banks or finance companies in relation to the car loans and the banks or finance companies are responsible for their actions.

Flex Commissions were banned by ASIC from 1 November 2018.

If you want to know more about the claims, you can read the pleadings for each case on the Supreme Court of Victoria website here.

You can also read more about flex commission arrangements in the ASIC Report “Flex commission arrangements in the car finance market” dated March 2017 here.

Our resources to respond to individual emails and phone calls are limited while our team is focused on preparing for trial. Please continue to review this website and social media for the latest updates on the Flex Commission Class Actions and for new and updated Frequently Asked Questions.

Contact the team

Please continue to review this website and social media for the latest updates on the Flex Commission Class Actions and for new and updated Frequently Asked Questions.

If you need to update your contact details, please email the team on Flexclassaction@mauriceblackburn.com.au with your new contact details. Make sure you put “Change in Contact Details” in the subject line of your email.

For all other queries, please read our FAQs.  

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