30 September 2025
Ref: DOIA-REQ-0019128
Spencer Jones
Email: [FYI request #31890 email]
Tēnā koe Spencer Jones
Thank you for your email of 4 August 2025 to the Ministry of Business, Innovation and Employment
(MBIE) requesting, under the Official Information Act 1982 (the Act), the following information:
Under the Official Information Act 1982, I request:
1. All internal MBIE briefings, Cabinet papers, Regulatory Impact Assessments, legal advice, or
memos between 1 Jan 2024 and today regarding:
- Drafting, intent, or legal rationale behind the Credit Contracts and Consumer Finance
Amendment Bill (2025);
- Any retrospective effect on litigation, especially the Banking Class Action (CIV-2021-404-119);
- Implications for consumer rights under CCCFA ss 22, 48, 99(1), and 99(1A).
2. All correspondence (emails, meeting notes, Teams chats, or memos) between MBIE staff and:
- Minister Scott Simpson or his office;
- Representatives of ANZ, ASB, NZBA, or any law firms (including Bell Gully, Russell McVeagh, or
MinterEllisonRuddWatts);
- Treasury, PCO, or the Commerce Commission concerning the class action or amendment bill.
3. Any records of:
- Stakeholder consultation prior to the bill’s drafting;
- Concerns about interference with judicial proceedings;
- Conflict-of-interest declarations by officials or advisors.
If any material is withheld, please cite the specific section of the OIA relied on.
I note you have made multiple requests on this topic, both to MBIE and to the Minister of Commerce and
Consumer Affairs, Hon Scott Simpson. I note that this response canvasses information not previously
considered in response to your previous requests.
I understand that your request relates to the retrospective provision of the Credit Contracts and
Consumer Finance Amendment Bill 2025.
In terms of your request regarding records of ‘declared conflicts of interest’, we note we hold records of
two employees involved in the policy development of these reforms were customers of one of the
defendants in the class litigation during the relevant period. This was considered a low-level perception
risk; in that they do not benefit from the decisions taken by Cabinet. We are withholding identifying
information under section 9(2)(a) of the Act - to protect the privacy of natural persons. No other
information relevant to this part of your request has been identified.
Please find attached the documentation relevant to your request.
Please note some information has been withheld under the following sections of the Act:
• 9(2)(a), to protect the privacy of natural persons;
• 9(2)(b)(ii), to protect information where the making available of the information would be likely
unreasonably to prejudice the commercial position of the person who supplied or who is the
subject of the information;
• 9(2)(ba)(i), to protect information which is subject to an obligation of confidence or which any
person has been or could be compelled to provide under the authority of any enactment, where
the making available of the information would be likely to prejudice the supply of similar
information, or information from the same source, and it is in the public interest that such
information should continue to be supplied; and
• 9(2)(h), to maintain legal professional privilege.
I do not consider that the withholding of this information is outweighed by public interest considerations
in making the information available.
If you wish to discuss any aspect of your request or this response, or if you require any further assistance,
please contact [email address].
You have the right to seek an investigation and review by the Ombudsman of this decision. Information
about how to make a complaint is available at www.ombudsman.parliament.nz or freephone 0800 802
602.
Nāku noa, nā
Glen Hildreth
Manager Consumer Policy
Commerce, Consumer and Business
Document Schedule
#
Subject/Description
Withholding grounds
1
Email Pack – Commerce Commission
9(2)(a)
9(2)(ba)(i)
9(2)(h)
2
Email Pack - Treasury
9(2)(a)
9(2)(ba)(i)
9(2)(b)(ii)
9(2)(h)
From:
Mark Atwel <Mark.Atwel @comcom.govt.nz>
Sent:
Tuesday, 1 July 2025 3:45 pm
To:
Marcus Smith
Subject:
Commerce Commission - Sections 17 & 22 enforcement outcomes
Attachments:
Commerce Commission - s17 & 22 Disclosure Cases - Prepared for MBIE July 2025
(5530437.6).pdf
Follow Up Flag:
Fol ow up
Flag Status:
Flagged
Kia ora Marcus,
In our meeting last Thursday you requested that we provide you with an update of the table we provided in
August 2024 detailing Commission enforcement outcomes and open cases for section 17 (initial disclosure)
and 22 (variation disclosure) investigations.
I attach a copy of a table detailing Commission enforcement outcomes and open investigations relating to
sections 17 and 22 for the period June 2015 to July 2025.
Please note that the table contains non-public confidential information – particularly our open investigations
and filed but not yet announced legal proceedings.
We also repeat some of the qualifications we provided in August about the completeness of the table data.
It is challenging for us to provide details of all disclosure cases because we don’t record enforcement
outcomes in our systems based on section breached in an easily retrievable way.
This means that while the attached is accurate for public enforcement outcomes (investigations
resulting in a warning or settlement outcome) the attached will significantly under record the number
of low level outcomes where s99(1A) may have been involved (i.e. compliance advice and no further
action letters).
Because there is no legal obligation to report potential breaches to the Commission, the attached
table reflects not only the level of potential breach by the lender but also the willingness of the lender
Released under the
to report errors to us.
In some cases a lender may have told us about a disclosure error but we chose not to open an
investigation.
Regards
Mark
Official Information Act 1982
Mark Atwel
Principal Adviser |Compe on, Fair Trading and Credit Branch
Commerce Commission | Te Komihana Tauhokohoko
Level 13, 55 Shortland Street | PO Box 105-222 | Auckland 1143 | New Zealand
DDI +64 (0)9 920 3492 | Mob s 9(2)(a)
| mark.atwel @comcom.govt.nz
www.comcom.govt.nz
1
This email may contain information that is confidential or legal y privileged. If you have received this email in error please
immediately notify the sender and delete the email, without using it in any way. The views presented in this email may not be
those of the Commission.
Released under the
Official Information Act 1982
2
Commerce Commission – Sections 17 and 22 disclosure breach enforcement outcomes June 2015 to July 2025 –
Contains confidential information
Public outcomes (Warnings/settlements/judgments)
Banks and finance companies
Lender name
Breach type
Breach period
Enforcement outcome
Cashinaflash.co.nz Limited
Initial disclosure (s 17)
June – October 2015
Warning 8 March 2016 (refunds involved)
(15628)
Shaw Personal Finance
Initial disclosure (s 17)
June 2015 - March 2016
Warning 5 July 2016 (refunds involved)
Limited (15830)
Adelphi Finance Limited
Initial disclosure (s 17)
June 2015 – March 2016
Warning 16 August 2016 (refunds involved)
(15821)
Aotea Finance Group
Initial disclosure (s 17)
June 2015 – February 2016
Settlement 15 July 2019 (refunds involved)
companies
Approved Finance Limited
Initial disclosure (s 17)
June 2015 – June 2016
Warning 6 April 2017
(15906)
Linsa Finance Limited (15905) Initial disclosure (s 17)
June 2015 – March 2016
Settlement August 2019 (refunds involved)
Released under the
Finance Ezi Limited t/a Ezi
Initial disclosure (s 17)
June 2015 – February 2017
Settlement May 2019 (refunds involved)
Finance (16307)
Official Information Act 1982
2
ANZ Bank New Zealand
Responsible lending (s9C) –
June 2015 – May 2016
Settlement March 2020 (refunds involved)
Limited (27686)
Incorrect information provided
in agreed variation letters
Profile Finance Limited
Initial disclosure (s 17)
June 2015 – November 2017
Settlement April 2020 (refunds involved)
(34203)
Westpac New Zealand
Initial disclosure (s 17)
May 2017 – March 2018
Settlement January 2020 (refunds involved)
Limited (40997)
Kiwibank Limited
Responsible lending (s 9C) –
June 2015 – March 2019
Settlement August 2020 (refunds involved)
arising from agreed variation
disclosure failure
Bank of New Zealand
Initial disclosure (s 17) and
June 2015 – February 2017
Warning December 2020 (refunds
Variation disclosure (s 22)
involved)
Ten or more discrete breach
circumstances (as set out in
Warning letter)
ASB Bank Limited (44141)
Responsible lending (s 9C) –
June 2015 – June 2019
Settlement February 2021 (refunds
arising from agreed variation
involved)
disclosure failure
Released under the
Two issues.
Kookmin Bank (45604)
Initial disclosure (s 17)
June 2015 – October 2021
Settlement June 2023 (refunds involved)
Official Information Act 1982
5219881.1
3
The Hongkong and Shanghai
CCCFA breaches include initial
June 2015 – October 2021
Warning June 2023 (refunds involved)
Banking Corporation Limited
disclosure (s 17) and agreed
(45870)
variation disclosure (s 22)
Investment Bureau Limited
CCCFA breaches include initial
June 2018 – February 2021
Warning November 2023 (refunds
(45990)
disclosure (s17)
involved)
Southland Building Society
Agreed variation disclosure
March 2014 – November
Warning June 2024 (refunds involved)
t/a Southland Bank (46240)
(s 22)
2021
Dolbak Finance Limited
Agreed variation disclosure
December 2021 – November
Warning February 2024 (refunds involved)
(46178)
(s 22)
2022
El Cheapo Cars Limited t/a
Agreed variation
June 2015 – November 2021
Judgment 20 May 2025 (Link to be added to
Ezybid Finance (47455)
disclosure (s 22)
Commission website soon. Criminal
proceedings. Fined $115,000. Ordered to
pay statutory damages to affected
borrowers)
High cost lenders
Lender name
Breach type
Breach period
Enforcement outcome
Acorn Finance Limited
CCCFA breaches include initial
1 and 27 May 2020
Warning February 2022 (refunds involved)
(45104)
disclosure (s 17)
Released under the
Hippo Holdings Limited
CCCFA breaches include initial
May – June 2020
Warning and Enforceable Undertakings
(45101)
disclosure (s 17)
December 2022 (refunds involved)
Tiny Loans Limited (45401)
CCCFA breaches include initial
June 2020 – August 2021
Warning February 2023 (refunds involved)
disclosure (s 17)
Eagle M.A.N. Group Limited
Alleged CCCFA breaches
June 2015 – August 2022
Judgment October 2024 (declaration of
include initial disclosure (s 17)
breach of s17, no refunds involved. Civil
Official Information Act 1982
pecuniary penalty for breach of high cost
5219881.1
4
rules)
Local Authorities
Lender name
Breach type
Breach period
Enforcement outcome
Auckland Council (44827)
CCCFA breaches include initial
June 2015 – February 2020
Warning February 2021 (refunds involved)
disclosure (s 17)
Canterbury Regional Council
CCCFA breaches include initial
August 2018 – March 2021
Warning August 2023 (refunds involved)
t/a Environment Canterbury
disclosure (s 17)
(45299)
Mobile traders [NB: typically don’t charge interest but s99(1A) results in waiving or refunding of credit and default fees]
Ace Marketing Limited
Breaches included s17
June 2013 – November 2015
Judgment (fine and ancillary order for costs
of borrowing)
Bestdeals 4 You Limited
Initial disclosure breach (s 17)
June 2015 – April 2016
Judgment (fine and ancillary order for COB)
Best Buy Limited
Breaches included s17
June 2015 – April 2016
Judgment (fine and ancillary order for COB)
Appenture Marketing Limited Breaches included s17
June 2015 – April 2016
Judgment (fine and ancillary order for COB)
Budget Warehouse Limited
Initial disclosure breach (s 17)
June 2015 – May 2016
Judgment (fine and ancillary order for COB)
Released under the
Macful International Limited
Breaches included s17
April 2015 – November 2015
Judgment (fine and ancillary order for COB)
Mobile Shop Limited
Breaches included s17
October 2015 – September
Judgment (fine and ancillary order for
2016
statutory damages)
Greenfield Global Limited t/a
Breaches included s17
June 2015 – April 2016
Warning (refunds involved)
KiwiOwn
Official Information Act 1982
5219881.1
5
Non-public enforcement outcomes – (Compliance advice letters and litigation)
Banks and finance companies
s 9(2)(ba)(i)
Released under the
Official Information Act 1982
5219881.1
6
Non-public open investigations – No enforcement outcome as at 1 July 2025
Banks and finance companies
s 9(2)(ba)(i)
Released under the
Official Information Act 1982
5219881.1
From:
Mark Atwel <Mark.Atwel @comcom.govt.nz>
Sent:
Monday, 12 August 2024 3:41 pm
To:
Marcus Smith
Cc:
Sarah Bartlett; Jil Pitches; Crystal Euden; Brett Carter; Cathrine McIntosh; Linn
McManamon
Subject:
FW: For feedback by 12pm Thurs - Draft Cabinet paper on Financial Services
Reforms policy decisions [IN-CONF DENCE: RELEASE-EXTERNAL]
Attachments:
Commerce Commission - s99(1A) Disclosure Cases - Prepared for
MBIE(5219881.2).pdf
Follow Up Flag:
Fol ow up
Flag Status:
Flagged
Kia ora Marcus,
I attach a document setting out enforcement outcomes for potential breaches of initial disclosure (s17) and
agreed variation disclosure (s22) obligations. Note that the attached contains confidential information.
For a number of reasons it is challenging for us to provide the information you have requested.
The primary reason is that we don’t record enforcement outcomes in our systems based on section breached
in an easily retrievable way.
This means that while the attached is accurate for public enforcement outcomes (investigations resulting in a
warning or settlement outcome) the attached will significantly under record the number of low level outcomes
where s99(1A) was involved (i.e. compliance advice and no further action letters).
There are also a number of other qualifications to the data provided or challenges with replying to your
request:
It is not clear what a “distinct event” is for the purposes of your question – some lender errors will
a ect multiple products (e.g. home loans, credit cards, and personal loans) and sometimes there
are minor variations on the same error.
The attached does not include investigations where we have concluded that there is a likely breach
Released under the
of ss17 or 22 but where we concluded that ss99(1A) was not triggered in a way that required refunds
(which investigations still require significant resource for the Commission and lenders).
Because there is no legal obligation to report potential breaches to the Commission, the attached
table reflects not only the level of potential breach by the lender but also the willingness of the
lender to report errors to us (and the biggest banks are significantly more likely to do this – e.g. ANZ
reports errors to us on a quarterly cadence).
In some cases a lender may have told us about a disclosure error but we chose not to open an
investigation.
Official Information Act 1982
Regards
Mark
Mark Atwell
Principal Adviser | Credit Branch
Commerce Commission | Te Komihana Tauhokohoko
Level 13, 55 Shortland Street | PO Box 105-222 | Auckland 1143 | New Zealand
DDI +64 (0)9 920 3492 | Mob s 9(2)(a)
| mark.atwel @comcom.govt.nz
1
www.comcom.govt.nz
From: Marcus Smith <[email address]>
Sent: Thursday, August 8, 2024 11:42 AM
To: Mark Atwel <Mark.Atwel @comcom.govt.nz>
Subject: RE: For feedback by 12pm Thurs - Draft Cabinet paper on Financial Services Reforms policy decisions [IN-
CONF DENCE: RELEASE-EXTERNAL]
Thanks for ge ng us these comments Mark. Helpful as always.
One further request if it’s not too much trouble:
To provide a sense of scale with s99(1A), would you be able to give me an idea of the number of a) disclosure
failures (as in dis nct events giving rise to s99(1A) liability) and b) lenders responsible for them that the Commission
is aware of or has se led both:
Pre-December 2019
Post-December 2019?
I’l make sure I caveat it / express loosely if it’s hard to be precise. But would be useful if you can provide something
on this.
Thanks
Marcus
From: Mark Atwel <Mark.Atwel @comcom.govt.nz>
Sent: Wednesday, August 7, 2024 4:09 PM
To: Marcus Smith <[email address]>
Cc: Sal y Whineray Groom <Sal [email address]>; Michel e Schulz <Michel [email address]>;
Manon Roehrig <[email address]>; Chris Cuthbertson <[email address]>; Bil
Busfield <Bil .[email address]>; Nelson Curry <[email address]>; Alice Jackson
<[email address]>; Caitlin Melhuish <[email address]>; Linn McManamon
<[email address]>; Crystal Euden <[email address]>; Sarah Bartlett
<[email address]>; Cathrine McIntosh <[email address]>; Brett Carter
<[email address]>; Jil Pitches <Jil .[email address]>; Andrew Palmer
<[email address]>
Subject: RE: For feedback by 12pm Thurs - Draft Cabinet paper on Financial Services Reforms policy decisions [IN-
Released under the
CONF DENCE: RELEASE-EXTERNAL]
Kia ora Marcus,
Thank you for the opportunity to comment on the draft RIS.
I attach the consumer credit RIS with comments from Commission sta .
We have no comment on the conduct RIS.
Official Information Act 1982
Regards
Mark
Mark Atwell
Principal Adviser | Credit Branch
Commerce Commission | Te Komihana Tauhokohoko
Level 13, 55 Shortland Street | PO Box 105-222 | Auckland 1143 | New Zealand
DDI +64 (0)9 920 3492 | Mob s 9(2)(a)
| mark.atwel @comcom.govt.nz
2
www.comcom.govt.nz
From: Marcus Smith <[email address]>
Sent: Wednesday, July 31, 2024 12:28 PM
To: Caitlin Melhuish <[email address]>; Elena Obolonkina [TSY
<[email address]>; Linn McManamon <[email address]>; Nelson Curry
<[email address]>; Daryl.Col [email address]; Louis Campbel <Louis.Campbel [email address]>; Alice
Jackson <[email address]>; [email address]; [email address]; Edwin Mitson
<[email address]>; Victoria Learmonth <[email address]>; Crystal Euden
<[email address]>; Mark Atwel <Mark.Atwel @comcom.govt.nz>; Sarah Bartlett
<[email address]>; Karla Reynolds <[email address]>; Cathrine McIntosh
<[email address]>; James Sergeant <[email address]>; Louise Unger
<[email address]>; Lachlan Cartwright <[email address]>; Debbie McLean
<[email address]>; Disee Anorpong [TSY <[email address]>; Mark Holden
<[email address]>; Brett Carter <[email address]>; Cathie Jenkins
<[email address]>; mary.l ewel [email address]; Michael Sherwood [TSY]
<[email address]>
Cc: Sal y Whineray Groom <Sal [email address]>; Stephanie Zhang <[email address]>;
Michel e Schulz <Michel [email address]>; Manon Roehrig <[email address]>; Emma Moore
<[email address]>; Daniel Meech <[email address]>; El iot Clark
<El [email address]>; Chris Cuthbertson <[email address]>; Bil Busfield
<Bil .[email address]>; Richard Clough <[email address]>; Katrina Melvil e
<Katrina.Melvil [email address]>; Iris Henderson <[email address]>; Andrew Palmer
<[email address]>
Subject: RE: For feedback by 12pm Thurs - Draft Cabinet paper on Financial Services Reforms policy decisions [IN-
CONF DENCE: RELEASE-EXTERNAL]
Kia ora anō,
We also invite your feedback on the a ached regulatory impact statements for consumer credit and conduct
reforms (for anyone who doesn’t already have the la er), which are currently before our internal QA panels. You’re
welcome to let us know if you spot anything problema c before Ministerial consulta on (same deadline as below
sorry), but we would like to take the me during Ministerial consulta on to work through parts of our analysis with
you – par cularly for the consumer credit RIS (see some comments/queries embedded).
Released under the
Please get us your comments on either document / both by COP next Wednesday 7 August, so we have me to
make changes before our panels sign off final versions that then go to the Minister’s office.
We’l be in touch separately with the FMA and Commission staff about a me early next week (when Chris is back)
to discuss some of the consumer credit op ons. Others are welcome to join us too: just let me know if you’re
interested.
Thanks as always for your help.
Official Information Act 1982
Ngā mihi
MBIE
From: Caitlin Melhuish <[email address]>
Sent: Tuesday, July 30, 2024 1:53 PM
To: Elena Obolonkina [TSY <[email address]>; Linn McManamon
<[email address]>; Nelson Curry <[email address]>; Daryl.Col [email address];
Louis Campbel <Louis.Campbel [email address]>; Alice Jackson <[email address]>;
3
[email address]; [email address]; Edwin Mitson <[email address]>; Victoria
Learmonth <[email address]>; [email address]; Mark.Atwel @comcom.govt.nz;
[email address]; [email address]; [email address]; James
Sergeant <[email address]>; Louise Unger <[email address]>;
[email address]; Debbie McLean <[email address]>; Disee Anorpong [TSY
<[email address]>; Mark Holden <[email address]>; Brett Carter
<[email address]>; Cathie Jenkins <[email address]>; mary.l ewel yn-
[email address]; Michael Sherwood [TSY] <[email address]>
Cc: Sal y Whineray Groom <Sal [email address]>; Stephanie Zhang <[email address]>;
Michel e Schulz <Michel [email address]>; Marcus Smith <[email address]>; Manon Roehrig
<[email address]>; Emma Moore <[email address]>; Daniel Meech
<[email address]>; El iot Clark <El [email address]>; Chris Cuthbertson
<[email address]>; Bil Busfield <Bil .[email address]>; Richard Clough
<[email address]>; Katrina Melvil e <Katrina.Melvil [email address]>; Iris Henderson
<[email address]>; Andrew Palmer <[email address]>
Subject: For feedback by 12pm Thurs - Draft Cabinet paper on Financial Services Reforms policy decisions [IN-
CONF DENCE: RELEASE-EXTERNAL]
Kia ora koutou
Please find a ached the dra Financial Services reforms policy decisions Cabinet paper for feedback. Can you please
let us know of any significant showstoppers in the paper by 12pm Thursday. There wil be another opportunity for
you to feedback during Ministerial consulta on. I’ve provided next steps below on what we are aiming for.
There are a few gaps – eg dispute resolu on schemes. We are working on this sec on fol owing Minister decisions
yesterday and can circulate an updated paper tomorrow. However for now we would appreciate your feedback on
the CoFI and CCCFA elements of the paper.
We are consul ng separately on decisions needed for the Commission to FMA transfer, but these wil go in this
paper.
Please note this version is also s l subject to legal review par cularly of the recommenda ons.
Next steps
Friday 2 August – paper goes to MO
8-12 August Ministerial consulta on
15 August lodge paper for ECO
21 August ECO Released under the
26 August Cabinet
Real y appreciate your me and please let us know if you’d like to discuss anything in the paper.
Ngā mihi nui
Caitlin Melhuish (she/her)
Senior Policy Advisor | Financial Markets
Commerce, Consumer and Business | Building, Resources and Markets
Official Information Act 1982
Hīkina Whakatutuki | Ministry of Business, Innova on & Employment (MBIE)
Email: [email address] | Telephone: 04 831 9633
4
This email may contain information that is confidential or legally privileged. If you have received this email in error please
immediately notify the sender and delete the email, without using it in any way. The views presented in this email may not
be those of the Commission.
Released under the
Official Information Act 1982
5
Commerce Commission – Sections 17 and 22 disclosure breach enforcement outcomes June 2015 to August 2024 –
Section 99(1A) – Contains confidential information
Public outcomes (warnings/settlements)
Banks and finance companies
Lender name
Breach type
Breach period
Enforcement outcome
s
Cashinaflash.co.nz Limited
Initial disclosure (s 17)
June – October 2015
Warning 8 March 2016 (refunds involved)
9
(15628)
(
2
Shaw Personal Finance
Initial disclosure (s 17)
June 2015 - March 2016
Warning 5 July 2016 (refunds involved)
Limited (15830)
Adelphi Finance Limited
Initial disclosure (s 17)
June 2015 – March 2016
Warning 16 August 2016 (refunds involved)
(15821)
Aotea Finance Group
Initial disclosure (s 17)
June 2015 – February 2016
Settlement 15 July 2019 (refunds involved)
companies
Approved Finance Limited
Initial disclosure (s 17)
June 2015 – June 2016
Warning 6 April 2017
(15906)
Linsa Finance Limited (15905) Initial disclosure (s 17)
June 2015 – March 2016
Settlement August 2019 (refunds involved)
Released under the
Finance Ezi Limited t/a Ezi
Initial disclosure (s 17)
June 2015 – February 2017
Settlement May 2019 (refunds involved)
Finance (16307)
Official Information Act 1982
2
ANZ Bank New Zealand
Responsible lending (s9C) –
June 2015 – May 2016
Settlement March 2020 (refunds involved)
Limited (27686)
Incorrect information provided
in agreed variation letters
Profile Finance Limited
Initial disclosure (s 17)
June 2015 – November 2017
Settlement April 2020 (refunds involved)
(34203)
Westpac New Zealand
Initial disclosure (s 17)
May 2017 – March 2018
Settlement January 2020 (refunds involved)
Limited (40997)
Kiwibank Limited
Responsible lending (s 9C) –
June 2015 – March 2019
Settlement August 2020 (refunds involved)
arising from agreed variation
disclosure failure
Bank of New Zealand
Initial disclosure (s 17) and
June 2015 – February 2017
Warning December 2020 (refunds
Variation disclosure (s 22)
involved)
Ten or more discrete breach
circumstances (as set out in
Warning letter)
ASB Bank Limited (44141)
Responsible lending (s 9C) –
June 2015 – June 2019
Settlement February 2021 (refunds
arising from agreed variation
involved)
disclosure failure
Released under the
Two issues.
Kookmin Bank (45604)
Initial disclosure (s 17)
June 2015 – October 2021
Settlement June 2023 (refunds involved)
Official Information Act 1982
5219881.1
3
The Hongkong and Shanghai
CCCFA breaches include initial
June 2015 – October 2021
Warning June 2023 (refunds involved)
Banking Corporation Limited
disclosure (s 17) and agreed
(45870)
variation disclosure (s 22)
Investment Bureau Limited
CCCFA breaches include initial
June 2018 – February 2021
Warning November 2023 (refunds
(45990)
disclosure (s17)
involved)
Southland Building Society
Agreed variation disclosure
March 2014 – November
Warning June 2024 (refunds involved)
t/a Southland Bank (46240)
(s 22)
2021
Dolbak Finance Limited
Agreed variation disclosure
December 2021 – November
Warning February 2024 (refunds involved)
(46178)
(s 22)
2022
High cost lenders
Lender name
Breach type
Breach period
Enforcement outcome
Acorn Finance Limited
CCCFA breaches include initial
1 and 27 May 2020
Warning February 2022 (refunds involved)
(45104)
disclosure (s 17)
Hippo Holdings Limited
CCCFA breaches include initial
May – June 2020
Warning and Enforceable Undertakings
disclosure (s 17)
December 2022 (refunds involved)
Tiny Loans Limited (45401)
CCCFA breaches include initial
June 2020 – August 2021
Warning February 2023 (refunds involved)
disclosure (s 17)
Released under the
Eagle M.A.N. Group Limited
Alleged CCCFA breaches
June 2015 – August 2022
Civil proceedings filed
include initial disclosure (s 17)
Official Information Act 1982
5219881.1
4
Local Authorities
Lender name
Breach type
Breach period
Enforcement outcome
Auckland Council (44827)
CCCFA breaches include initial
June 2015 – February 2020
Warning February 2021 (refunds involved)
disclosure (s 17)
Canterbury Regional Council
CCCFA breaches include initial
August 2018 – March 2021
Warning August 2023 (refunds involved)
t/a Environment Canterbury
disclosure (s 17)
(45299)
Mobile traders [NB: typically don’t charge interest but s99(1A) results in waiving or refunding of credit and default fees]
Ace Marketing Limited
Breaches included s17
June 2013 – November 2015
Judgment (fine and ancillary order for COB)
Bestdeals 4 You Limited
Initial disclosure breach (s 17)
June 2015 – April 2016
Judgment (fine and ancillary order for COB)
Best Buy Limited
Breaches included s17
June 2015 – April 2016
Judgment (fine and ancillary order for COB)
Appenture Marketing Limited Breaches included s17
June 2015 – April 2016
Judgment (fine and ancillary order for COB)
Budget Warehouse Limited
Initial disclosure breach (s 17)
June 2015 – May 2016
Judgment (fine and ancillary order for COB)
Macful International Limited Breaches included s17
April 2015 – November 2015
Judgment (fine and ancillary order for COB)
Mobile Shop Limited
Breaches included s17
October 2015 – September
Judgment (fine and ancillary order for
Released under the
2016
statutory damages)
Greenfield Global Limited t/a Breaches included s17
June 2015 – April 2016
Warning (refunds involved)
KiwiOwn
Official Information Act 1982
5219881.1
5
Non-public enforcement outcomes – (Compliance Advice Letters and No Further Action)
s 9(2)(ba)(i)
Open investigations – No enforcement outcome
Released under the
s 9(2)(ba)(i)
Official Information Act 1982
5219881.1
s 9(2)(ba)(i)
Released under the
Official Information Act 1982
5219881.1
From:
Marcus Smith
Sent:
Tuesday, 25 February 2025 3:26 pm
To:
Mark Atwel
Subject:
RE: Credit - Retrospective change
Looks like the statement of claim does distinguish between existing and ‘post amendment’ loans, and only
claims section 99(1A) applies to the latter. Will be interesting to see how they argue section 99(1) applies to
the former…
Marcus
From: Mark Atwel <Mark.Atwel @comcom.govt.nz>
Sent: Tuesday, 25 February 2025 1:14 pm
To: Marcus Smith <[email address]>
Subject: Credit - Retrospective change
Hi Marcus,
Following on from this morning I think we also have a potential concern around the retrospective change
drafting.
It’s probably easiest to talk through. Let me know when you are free for a quick chat.
Cheers
Mark
Mark Atwel
Principal Adviser |Compe on, Fair Trading and Credit Branch
Commerce Commission | Te Komihana Tauhokohoko
Level 13, 55 Shortland Street | PO Box 105-222| Auckland 1143 | New Zealand
DDI +64 (0)9 920 3492 | Mob s 9(2)(a)
| mark.atwel @comcom.govt.nz
www.comcom.govt.nz
Released under the
This email may contain information that is confidential or legal y privileged. If you have received this email in error please
immediately notify the sender and delete the email, without using it in any way. The views presented in this email may not be
those of the Commission.
Official Information Act 1982
1
From:
Mark Atwel <Mark.Atwel @comcom.govt.nz>
Sent:
Tuesday, 18 February 2025 12:51 pm
To:
Marcus Smith
Cc:
Katrina Melvil e
Subject:
RE: Draft RIS for review: backdating 2019 reforms to section 99(1A) of the CCCFA
Kia ora Marcus,
I wanted to confirm that we are no longer seeking the CLO legal opinion and that MBIE can cease any work
progressing this.
This is on the basis that the savings provision in the CCCF Amendment Bill (assuming we are comfortable with
the final form) lessens the need for us to understand what the potential e ects of retrospective legislation
might be.
Thanks for your initial work in investigating the release of the opinion.
Regards
Mark
Mark Atwel
Principal Adviser |Compe on, Fair Trading and Credit Branch
Commerce Commission | Te Komihana Tauhokohoko
Level 13, 55 Shortland Street | PO Box 105-222 | Auckland 1143 | New Zealand
DDI +64 (0)9 920 3492 | Mob s 9(2)(a)
| mark.atwel @comcom.govt.nz
www.comcom.govt.nz
From: Marcus Smith <[email address]>
Released under the
Sent: Wednesday, 5 February 2025 4:19 pm
To: Mark Atwel <Mark.Atwel @comcom.govt.nz>
Cc: Katrina Melvil e <Katrina.Melvil [email address]>
Subject: RE: Draft RIS for review: backdating 2019 reforms to section 99(1A) of the CCCFA
Kia ora Mark,
We may need to consider this further on Monday. (I’m away Friday and so is Glen.) Not sure the CLO advice
we’ve got would actually help the Commission with the below, but there’s some prospect of us getting more
Official Information Act 1982
direct advice on whether a savings provision may be necessary if we can swing that in time. In any case, we’re
certainly committed to working with the Commission to resolve its concern about past settlements.
Please contact Katrina if you need anything in the meantime.
Ngā mihi
Marcus
1
From: Mark Atwel <Mark.Atwel @comcom.govt.nz>
Sent: Wednesday, 5 February 2025 1:28 pm
To: Marcus Smith <[email address]>
Cc: Katrina Melvil e <Katrina.Melvil [email address]>
Subject: RE: Draft RIS for review: backdating 2019 reforms to section 99(1A) of the CCCFA
Kia ora Marcus,
Retrospective application of legislation is highly unusual in New Zealand and, given this, it would be helpful for
us to understand CLO’s view s 9(2)(h)
Given
the CLO’s greater experience in considering matters such as this it may also provide us with a degree of
comfort that we have considered the various facets of the potential implications.
Regards
Mark
Mark Atwel
Principal Adviser |Compe on, Fair Trading and Credit Branch
Commerce Commission | Te Komihana Tauhokohoko
Level 13, 55 Shortland Street | PO Box 105-222 | Auckland 1143 | New Zealand
DDI +64 (0)9 920 3492 | Mob s 9(2)(a)
| mark.atwel @comcom.govt.nz
www.comcom.govt.nz
From: Marcus Smith <[email address]>
Sent: Monday, 3 February 2025 1:58 pm
To: Mark Atwel <Mark.Atwel @comcom.govt.nz>
Cc: Katrina Melvil e <Katrina.Melvil [email address]>
Subject: RE: Draft RIS for review: backdating 2019 reforms to section 99(1A) of the CCCFA
Kia ora Mark,
We’re finding it a bit di icult to articulate the case to the CLO for sharing the legal advice based on how the
proposal might a ect the Commission. We’re thinking it may help if you’re able to share with us your specific
concerns, based on the legal advice you said you were getting. At least that way we could work out the nature
of your concerns and to what extent the CLO advice might be relevant to them (as well as how the
Released under the
amendments might need to accommodate them – noting we’re running short on time to reconsider the
drafting).
How does that sound to you?
Thanks
Marcus
Official Information Act 1982
From: Marcus Smith
Sent: Friday, 31 January 2025 12:23 pm
To: Mark Atwel <Mark.Atwel @comcom.govt.nz>
Subject: RE: Draft RIS for review: backdating 2019 reforms to section 99(1A) of the CCCFA
We’re sending them our paperwork today, but no idea how quickly we’l have an answer sorry Mark.
From: Mark Atwel <Mark.Atwel @comcom.govt.nz>
Sent: Friday, January 31, 2025 12:15 PM
2
To: Marcus Smith <[email address]>
Subject: RE: Draft RIS for review: backdating 2019 reforms to section 99(1A) of the CCCFA
Thanks Marcus. Appreciate your e orts. Yes, if you could ask Katrina that would be great.
From: Marcus Smith <[email address]>
Sent: Friday, 31 January 2025 12:06 pm
To: Mark Atwel <Mark.Atwel @comcom.govt.nz>
Subject: RE: Draft RIS for review: backdating 2019 reforms to section 99(1A) of the CCCFA
Kia ora Mark. You wouldn’t believe the process required to get legal privilege waived by CL. We’re quite far along in
trying for you though. Shal I ask Katrina for an indica on of when we might know?
Marcus
From: Mark Atwel <Mark.Atwel @comcom.govt.nz>
Sent: Friday, January 31, 2025 11:19 AM
To: Marcus Smith <[email address]>
Subject: RE: Draft RIS for review: backdating 2019 reforms to section 99(1A) of the CCCFA
Morena Marcus,
Just following up on whether MBIE has any further thoughts on whether the Commission is able to see a copy
of the Crown Law opinion.
Regards
Mark
Mark Atwel
Principal Adviser |Compe on, Fair Trading and Credit Branch
Commerce Commission | Te Komihana Tauhokohoko
Level 13, 55 Shortland Street | PO Box 105-222 | Auckland 1143 | New Zealand
DDI +64 (0)9 920 3492 | Mob s 9(2)(a)
| mark.atwel @comcom.govt.nz
www.comcom.govt.nz
Released under the
From: Marcus Smith <[email address]>
Sent: Monday, 23 December 2024 1:09 pm
To: Mark Atwel <Mark.Atwel @comcom.govt.nz>
Cc: Katrina Melvil e <Katrina.Melvil [email address]>; Glen Hildreth <[email address]>; Michel e Schulz
<Michel [email address]>; Nelson Curry <[email address]>; [email address]; Alice
Jackson <[email address]>; Sarah Bartlett <[email address]>; Lachlan Cartwright
<[email address]>; Jil Pitches <Jil .[email address]>; Caroline Andic
<[email address]>
Official Information Act 1982
Subject: RE: Draft RIS for review: backdating 2019 reforms to section 99(1A) of the CCCFA
Kia ora Mark,
Many thanks for ge ng us these comments so smartly. A ached are some responses to show what I’m proposing to
do with them. There wil likely be more opportuni es to adjust details through January and February where we need
to.
3
When Katrina’s back next year, I’l find out whether there is any prospect of Crown Law waiving legal privilege for
Crown en es. It may be worth us discussing what value that would add to your input, but I’l come back to you on
this.
Ngā mihi nui
Marcus
From: Mark Atwel <Mark.Atwel @comcom.govt.nz>
Sent: Friday, December 20, 2024 1:51 PM
To: Marcus Smith <[email address]>
Cc: Katrina Melvil e <Katrina.Melvil [email address]>; Glen Hildreth <[email address]>; Michel e Schulz
<Michel [email address]>; Nelson Curry <[email address]>; [email address]; Alice
Jackson <[email address]>; Sarah Bartlett <[email address]>; Lachlan Cartwright
<[email address]>; Jil Pitches <Jil .[email address]>; Caroline Andic
<[email address]>
Subject: RE: Draft RIS for review: backdating 2019 reforms to section 99(1A) of the CCCFA
Kia ora Marcus,
Thank you for the opportunity to comment on the latest draft of the s99(1A) RIS.
I attach the RIS with Commission comments.
A couple of key points to highlight from our perspective:
Paragraph 61 – We request that the sentence referring to the Commission informing parties a ected
by the proposal be deleted. We do not see that the Commission has a role here.
Paragraph 62 – The last sentence provides “We wil work with the Commission to manage any impact of
the policy change on these se lements”. We request that the words “on these se lements” be deleted in
order not to create the impression that exis ng se lements are affected more than we believe they are. On
that note, in order to help us consider the impact of any proposed change on the Commission as well as
supporting us to provide more well-informed comments on the RIS it would assist if we could see a
copy of the legal advice MBIE has obtained from the Crown Law Office s 9(2)(h)
Finally, we note that the bullet point comments in our cover email providing feedback to MBIE on an earlier
Released under the
draft of the RIS continue remain relevant (further copy of email 29 October 2024 attached).
Regards
Mark
Mark Atwel
Principal Adviser |Compe on, Fair Trading and Credit Branch
Official Information Act 1982
Commerce Commission | Te Komihana Tauhokohoko
Level 13, 55 Shortland Street | PO Box 105-222 | Auckland 1143 | New Zealand
DDI +64 (0)9 920 3492 | Mob s 9(2)(a)
| mark.atwel @comcom.govt.nz
www.comcom.govt.nz
From: Marcus Smith <[email address]>
Sent: Wednesday, 11 December 2024 10:32 am
To: Nelson Curry <[email address]>; [email address]; Alice Jackson
<[email address]>; Sarah Bartlett <[email address]>; Lachlan Cartwright
4
<[email address]>; Jil Pitches <Jil .[email address]>; Mark Atwel
<Mark.Atwel @comcom.govt.nz>; [email address]; Mark Holden <[email address]>
Cc: Katrina Melvil e <Katrina.Melvil [email address]>; Glen Hildreth <[email address]>; Michel e Schulz
<Michel [email address]>
Subject: Draft RIS for review: backdating 2019 reforms to section 99(1A) of the CCCFA
Kia ora koutou,
As foreshadowed, I’m seeking feedback on the latest dra of our RIS proposing retrospec ve legisla ve change to
provide the courts with discre on over the effect of sec on 99(1A). Accep ng there wil be people coming and going
over the next few weeks, I’m not proposing a specific deadline for comment. I’l let you know once I have a date
confirmed for review by an MBIE RIS panel, but I’d say I’m unlikely to submit it this year. (I’m back at work on 6
January.) Comments before them would of course be welcome! FYI, I’m also ge ng more comments internal y.
I understand the Minister wil very shortly be seeking the A orney-General’s agreement to have this amendment
dra ed in advance of Cabinet approval (and agreed instead when the Bil proposed for introduc on is before
Cabinet). Failing that, the proposal would s l likely go to Cabinet early next year (and added to the Bil later).
A reminder this ma er is market sensi ve. Please handle with care.
Some things to note in terms of what has changed since the last dra :
Approach to defining the problem
My approach to defining the problem is a bit more limited than others have suggested. This reflects that:
The problem relates to a law that has since changed (i.e. been addressed by the 2019 reforms, in that ful
forfeiture can be avoided where it would be unjust/inequitable). Normal y the point of regulatory change is to
influence how regulated par es behave. Retrospec ve legisla on general y can’t do that. In this case, it’s not
clear how the historical law could influence how lenders make decisions about lending in the present unless it
changes their financial posi on (or they are so worried it wil that they act as if it has).
o Not a perfect analogy, but to try and capture what I’m proposing to ignore: Say there used to be site
hazard present in a building that has since been renovated and brought up to standard. The fact that
hazard used to exist shouldn’t affect (ra onal) wil ingness to enter the building. It’s a historical
wrong. If to regret an old policy (in this case da ng back to 2015) were a good enough reason to
erase it from legal history, retrospec ve legisla on would be commonplace.
The situa on we’re concerned about is where the court finds in the li ga on against ANZ and ASB that it is
bound to require ful forfeiture to affected customers. The reasons we’re concerned with it should be
Released under the
informed by the purposes of the CCCFA. If the losses to ANZ and ASB, or subsequently to any other lenders,
don’t have any implica ons for the future supply of credit or the interests of consumers, then they are not
problema c from a public policy perspec ve. They would just cons tute a transfer from the banks to their
customers (and transfers within an economy are neutral). So I’m focussing on the poten al indirect
consequences of that transfer in terms of impact on the market/consumers.
The indirect consequences of such a transfer depend on how large it is and how many lenders it could involve. For
the purposes of trying to quan fy it, I’m focussing on the poten al liability of ANZ and ASB, given the RBNZ
model ing is based on the facts applying to them. RBNZ advice is that smal er, domes c banks with greater reliance
Official Information Act 1982
on income from consumer lending would be worse affected by comparable liability. I emphasise this in our problem
defini on, but it does rely on having some sense for what scale of losses are possible in the event ful forfeiture is
required (to a subset of customers rela ng to a disclosure breach covering 1 – 4 years), and more is known about
what that would look like for ANZ and ASB.
We’re s l unsure (and therefore keen to test) whether ‘bank runs’ is a plausible consequence of the ful -forfeiture
scenario. I don’t see this as essen al to our problem defini on, but it would perhaps add some weight if it were a
plausible concern.
5
Choice of criteria
We’ve made some adjustments to these to ensure they work for the historical nature of the problem we’re trying to
address. For example, the concept of compliance costs is not par cularly meaningful here. We also con nue to think
it’s important the criteria enable us to analyse op ons against the legal conven ons/principles relevant to
retrospec ve legisla on (as strongly recommended by the LDAC guidelines and lawyers involved).
s 9(2)(h)
I’m happy to discuss any of this. Thanks in advance for your feedback.
Ngā mihi nui
Marcus
This email may contain information that is confidential or legally privileged. If you have received this email in error please
immediately notify the sender and delete the email, without using it in any way. The views presented in this email may not
be those of the Commission.
Released under the
Official Information Act 1982
6
From:
Mark Atwel <Mark.Atwel @comcom.govt.nz>
Sent:
Monday, 3 February 2025 4:53 pm
To:
Marcus Smith
Cc:
Sarah Bartlett; Jil Pitches; Cathrine McIntosh; Katrina Melvil e; Glen Hildreth
Subject:
CCCF Amendment Bil - Retrospective change - savings provision
Follow Up Flag:
Fol ow up
Flag Status:
Flagged
Kia ora Marcus
We have been considering the issue of whether the CCCF Amendment Bill needs to include some sort of
savings provision stating that the retrospective change to the e ect of s99(1A) doesn’t impact on existing
Commission settlements or enforceable undertakings. You raised this with us recently and we have come to
the view that it would be preferable for the Bill to contain a savings provision of this kind.
Our reasons include that not all the Commission settlements and enforceable undertakings are stated to be in
full and final settlement, and while they do contain provisions that reserve our rights and other protections
against breach by the lender, there is a risk that a lender could seek to challenge a settlement or enforceable
undertaking once retrospective application of ss95A and 95B comes into force. Our preference is to guard
against this risk.
We are happy to discuss these thoughts with you.
Regards
Mark
Mark Atwel
Principal Adviser |Compe on, Fair Trading and Credit Branch
Commerce Commission | Te Komihana Tauhokohoko
Level 13, 55 Shortland Street | PO Box 105-222 | Auckland 1143 | New Zealand
DDI +64 (0)9 920 3492 | Mob s 9(2)(a)
| mark.atwel @comcom.govt.nz
www.comcom.govt.nz
Released under the
This email may contain information that is confidential or legal y privileged. If you have received this email in error please
immediately notify the sender and delete the email, without using it in any way. The views presented in this email may not be
those of the Commission.
Official Information Act 1982
1
From:
Mark Atwel <Mark.Atwel @comcom.govt.nz>
Sent:
Monday, 3 February 2025 11:14 am
To:
Marcus Smith
Subject:
FW: Able to clarify?
Attachments:
2024-12-10 RIS for proposal to make discretion over effect of s99(1A) retrospective
- draft for Crown entities (5366966.2) - Marcus replies.docx
Follow Up Flag:
Fol ow up
Flag Status:
Flagged
Morena Marcus,
While both banks and finance companies are potentially impacted by section 99(1A) the Commission’s
experience is that a greater number of issues have arisen with banks as compared to finance companies.
The Commission has taken enforcement action against (settlements, warnings etc) or is currently
investigating s 9(2)(ba)(i)
In contrast, the Commission has taken enforcement action against 10 finance companies in relation
to disclosure errors out of a total population of more than 500 finance companies
Nearly all of the major banks have been investigated for agreed variation disclosure errors (s22)
whereas only one of the finance company enforcement outcomes relates to agreed variation (with the
other nine relating to s17 initial disclosure)
Some of the di erence in enforcement outcomes between banks and finance companies likely
reflects an increase willingness of banks as compared to finance companies to self-report errors to
the Commission but di erences in business models are likely relevant here also. Finance companies
often have a much smaller range of loan products and distribution channels (often just one) any
typically won’t do as many agreed variations (eg car loans are often one and done as compared to
home loans) making compliance more straight forward. Banks have a greater range of products,
methods of loan origination and variation, and are more likely to agree to loan variations (particularly
with home loans) making disclosure compliance more complicated and in the Commission’s
experience leading to an increased incidences of disclosure errors.
Regards
Released under the
Mark
Mark Atwel
Principal Adviser |Compe on, Fair Trading and Credit Branch
Commerce Commission | Te Komihana Tauhokohoko
Level 13, 55 Shortland Street | PO Box 105-222 | Auckland 1143 | New Zealand
DDI +64 (0)9 920 3492 | Mob s 9(2)(a)
| mark.atwel @comcom.govt.nz
Official Information Act 1982
www.comcom.govt.nz
From: Marcus Smith <[email address]>
Sent: Friday, 31 January 2025 2:33 pm
1
To: Mark Atwel <Mark.Atwel @comcom.govt.nz>
Subject: Able to clarify?
Kia ora anō Mark,
I’m s l fixing up the RIS (fol owing feedback through our internal RIA review panel process). Looking back at the
Commission comment below, are you able to help me understand what was meant?
Thanks
Marcus
Released under the
Official Information Act 1982
This email may contain information that is confidential or legally privileged. If you have received this email in error please
immediately notify the sender and delete the email, without using it in any way. The views presented in this email may not
be those of the Commission.
2
From:
Mark Atwel <Mark.Atwel @comcom.govt.nz>
Sent:
Friday, 24 January 2025 10:10 am
To:
Marcus Smith
Subject:
RE: Financial Services Reforms: draft RIS for comment - proposal to make discretion
over the effect of section 99(1A) retrospective [IN-CONF DENCE: RELEASE-
EXTERNAL]
Follow Up Flag:
Fol ow up
Flag Status:
Completed
Kia ora Marcus,
No problems - I’m happy to chat with you about this.
I have a meeting 11:00-12pm but otherwise I am free all day.
Cheers
Mark
Mark Atwel
Principal Adviser |Compe on, Fair Trading and Credit Branch
Commerce Commission | Te Komihana Tauhokohoko
Level 13, 55 Shortland Street | PO Box 105-222 | Auckland 1143 | New Zealand
DDI +64 (0)9 920 3492 | Mob s 9(2)(a)
| mark.atwel @comcom.govt.nz
www.comcom.govt.nz
From: Marcus Smith <[email address]>
Sent: Thursday, 23 January 2025 2:47 pm
To: Sarah Bartlett <[email address]>; Mark Atwel <Mark.Atwel @comcom.govt.nz>
Subject: RE: Financial Services Reforms: draft RIS for comment - proposal to make discretion over the effect of
section 99(1A) retrospective [IN-CONF DENCE: RELEASE-EXTERNAL]
Released under the
Kia ora kōrua,
Would it be possible to chat with one or more of you about the concern highlighted below? Hoping to be er
understand what it might mean for dra ing, ideal y in the next couple of days. Just when you can next spare 15 mins
or so please.
Thanks
Marcus
Official Information Act 1982
From: Sarah Bartlett <[email address]>
Sent: Tuesday, October 29, 2024 2:27 PM
To: Sal y Whineray Groom <Sal [email address]>; Andrew Royle <[email address]>;
Gwen Rashbrooke <[email address]>; Elena Obolonkina [TSY
<[email address]>; Owen McManamon <[email address]>;
Daryl.Col [email address]; Louis Campbel <Louis.Campbel [email address]>; Alice Jackson
<[email address]>; [email address]; Edwin Mitson <[email address]>; Victoria
Learmonth <[email address]>; Mark Atwel <Mark.Atwel @comcom.govt.nz>; James Sergeant
1
<[email address]>; Lachlan Cartwright <[email address]>; Debbie McLean
<[email address]>; Disee Anorpong [TSY <[email address]>; Mark Holden
<[email address]>; mary.l ewel [email address]; Michael Sherwood [TSY]
<[email address]>; Nelson Curry <[email address]>; Jil Pitches
<Jil .[email address]>; Kama Khairuzin [TSY] <[email address]>;
[email address]
Cc: Andrew Palmer <[email address]>; Katrina Melvil e <Katrina.Melvil [email address]>; Richard
Clough <[email address]>; Glen Hildreth <[email address]>; Tom Simcock
<[email address]>; Caroline Andic <[email address]>
Subject: RE: Financial Services Reforms: draft RIS for comment - proposal to make discretion over the effect of
section 99(1A) retrospective [IN-CONF DENCE: RELEASE-EXTERNAL]
Kia ora Sally
Thank you for the opportunity to comment on the draft RIS.
Jill has collated the Commission’s comments and included those in the attached version of the document. I
am just back from leave today so have also added in a few comments.
The key points from our perspective are the same as those included in our feedback on the draft briefing (the
team’s email of 8 October 2024):
Should retrospectivity be implemented, then it is important that any retrospective law change makes
clear that it does not undo or otherwise impact on any Commission settlements or other Commission
enforcement actions for disclosure failures covering the period June 2015 to December 2019, including
those where other banks (e.g. Kookmin, BNZ) made full repayment of costs of borrowing for disclosure
breaches.
We note the very real problem that any retrospective law change would effectively create a situation
where two different laws apply or have applied to lenders that may have engaged in the same or similar
conduct over similar periods, with one group of lenders who have relied on and complied with, or been
subject to enforcement outcomes consistent with, the current legislation, and others, who have not
complied but have not yet been subject to enforcement outcomes, who would be subject to the
proposed retrospective legislation, despite the harm to consumers being consistent across the
different periods. The retrospective effect would specifically advantage this second group of lenders
and disadvantage that group of consumers. We have a number of open investigations into lenders
following self-reports to the Commission of initial and agreed variation disclosure errors covering the
period June 2015 to December 2019 relating to tens of thousands of customers. We are working
Released under the
through these investigations and take a measured view of lender liability arising from disclosure
failures during this period. The announcement of potential retrospective law change would create real
uncertainty and could significantly complicate the timely progression and resolution of our
investigations and potential future remediation payments to consumers. Lenders may be less
incentivised to work with the Commission and agree an appropriate quantum. The issues will need to
be fully addressed by MBIE so as not to create problems for the Commission.
We stress again that the Commission is keen for the transfer of the enforcement function for the
CCCFA from the Commission to the FMA (and associated transfer of staffing and funding) to occur as
Official Information Act 1982
soon as possible. We would have concerns if the legislative time-frame for any retrospective change to
s95A meant a delay to the coming into effect of amendment legislation transferring the CCCFA
enforcement function.
Kind regards
Sarah
2
Sarah Bartle (she/her)
Director Credit
Compe on, Fair Trading and Credit
Commerce Commission | Te Komihana Tauhokohoko
44 The Terrace | PO Box 2351 | Wel ington 6140 | New Zealand
Mob s 9(2)(a)
| sarah.bartle @comcom.govt.nz
www.comcom.govt.nz
From: Sal y Whineray Groom <Sal [email address]>
Sent: Tuesday, 22 October 2024 5:31 pm
To: Andrew Royle <[email address]>; Gwen Rashbrooke <[email address]>;
Elena Obolonkina [TSY <[email address]>; Owen McManamon
<[email address]>; Daryl.Col [email address]; Louis Campbel
<Louis.Campbel [email address]>; Alice Jackson <[email address]>; [email address]; Edwin
Mitson <[email address]>; Victoria Learmonth <[email address]>; Mark Atwel
<Mark.Atwel @comcom.govt.nz>; Sarah Bartlett <[email address]>; Karla Reynolds
<[email address]>; James Sergeant <[email address]>; Lachlan Cartwright
<[email address]>; Debbie McLean <[email address]>; Disee Anorpong [TSY
<[email address]>; Mark Holden <[email address]>; Cathie Jenkins
<[email address]>; mary.l ewel [email address]; Michael Sherwood [TSY]
<[email address]>; Nelson Curry <[email address]>; Jil Pitches
<Jil .[email address]>; Kama Khairuzin [TSY] <[email address]>;
[email address]
Cc: Andrew Palmer <[email address]>; Katrina Melvil e <Katrina.Melvil [email address]>; Richard
Clough <[email address]>; Glen Hildreth <[email address]>; Tom Simcock
<[email address]>
Subject: Financial Services Reforms: draft RIS for comment - proposal to make discretion over the effect of section
99(1A) retrospective [IN-CONFIDENCE: RELEASE-EXTERNAL]
Kia ora koutou ComCom, FMA, RB, Treasury and Ministry of Regulation folk,
Please see attached a draft RIS for comment on options to give the courts explicit discretion over the effect
of section 99(1A) for the 2015-2019 period. This draft RIS is shared in strict confidence.
The Minister of Commerce and Consumer Affairs has not yet made a decision on the briefing that we sent
up on 10 October, but we are preparing this draft RIS in the event that he does decide he would like to
Released under the
seek a Cabinet decision.
We are not able to share legal advice that we have received that has informed the RIS as it’s subject to
legal professional privilege – you wil see that where this is referred to in the RIS that it has been deleted.
Please get your feedback back to me by COP Tuesday 29 October. I am available to discuss the draft RIS
tomorrow (Wednesday) and Thursday. I am on annual leave Friday and Tuesday.
Treasury – s 9(2)(ba)(i)
. Therefore, we haven’t included this
Official Information Act 1982
in the RIS yet.
I also want to try and get the RIS down to 10 pages or less…. so always keen for suggestions of where I
can condense content.
Ngā mihi,
Sal y Whineray Groom
Principal Policy Advisor, Consumer Policy Team
Building Resources and Markets Group
3
Ministry of Business, Innova on & Employment
sal [email address]
Waea/Telephone: +64 4 901 6191
Level 5, 15 Stout Street, Wel ington 6011
NZBN 9429000106078
This email may contain information that is confidential or legal y privileged. If you have received this email in error please
immediately notify the sender and delete the email, without using it in any way. The views presented in this email may not be
those of the Commission.
Released under the
Official Information Act 1982
4
From:
Mark Atwel <Mark.Atwel @comcom.govt.nz>
Sent:
Tuesday, 8 October 2024 4:35 pm
To:
Marcus Smith
Cc:
Katrina Melvil e; Glen Hildreth; Michel e Schulz; Sal y Whineray Groom;
[email address]; Alice Jackson; [email address];
[email address]; [email address];
[email address]; Sarah Bartlett; Karla Reynolds; James Sergeant;
Lachlan Cartwright; [email address];
[email address]; [email address]; mary.l ewel yn-
[email address]; Michael Sherwood [TSY]; [email address]; Jil
Pitches; James Barnett [TSY]; [email address]; Caroline Andic;
Andy Luck
Subject:
RE: For comment: Draft advice on historical problem with section 99(1A) of the
CCCFA
Attachments:
20241002 Briefing on s99(1A) historical issue - draft for agency feedback
(5287100.3).docx
Follow Up Flag:
Fol ow up
Flag Status:
Completed
Kia ora Marcus,
Thank you for the opportunity to comment on the draft briefing.
We attach Commission comments.
Key points from our perspective are:
The Commission has undertaken investigations into disclosure failures covering the period June 2015
to December 2019 and entered into settlements and/or enforceable undertakings with lenders or
arrived at other enforcement outcomes (e.g. judgments, warnings) based on the laws that applied
during that period. It is important that any retrospective law change makes clear that it does not undo
or otherwise impact on any Commission settlements or other Commission enforcement actions.
Released under the
Even where s99(1A) is not referenced in the relevant settlement, we consider that it has likely informed
both parties’ view of the appropriate quantum. Any retrospective law change would effectively create a
situation where two different laws apply or have applied to lenders that may have engaged in the same
or similar conduct over similar periods. Put another way, there would be one group of lenders who
have relied on and complied with, or been subject to enforcement outcomes consistent with, the
current legislation. Others, who have not complied but have not yet been subject to enforcement
outcomes, would be subject to the proposed retrospective legislation. The retrospective effect would
specifically advantage this second group. We have a number of open investigations into lenders
following self-reports to the Commission of initial and agreed variation disclosure errors covering the
Official Information Act 1982
period June 2015 to December 2019 relating to tens of thousands of customers. We are working
through these investigations and take a measured view of lender liability arising from disclosure
failures during this period. The announcement of potential retrospective law change would create real
uncertainty and could significantly complicate the timely progression and resolution of our
investigations and potential future remediation payments to consumers.
The Commission is keen for the transfer of the enforcement function for the CCCFA from the
Commission to the FMA (and associated transfer of staffing and funding) to occur as soon as possible.
We would have concerns if the legislative time-frame for any retrospective change to s95A meant a
1
delay to the coming into effect of amendment legislation transferring the CCCFA enforcement
function.
Regards
Mark
Mark Atwel
Principal Adviser |Compe on, Fair Trading and Credit Branch
Commerce Commission | Te Komihana Tauhokohoko
Level 13, 55 Shortland Street | PO Box 105-222 | Auckland 1143 | New Zealand
DDI +64 (0)9 920 3492 | Mob s 9(2)(a)
| mark.atwel @comcom.govt.nz
www.comcom.govt.nz
From: Marcus Smith <[email address]>
Sent: Thursday, October 3, 2024 9:29 AM
To: [email address]; Owen McManamon <[email address]>;
Daryl.Col [email address]; Alice Jackson <[email address]>; [email address];
[email address]; [email address]; [email address]; Mark Atwel
<Mark.Atwel @comcom.govt.nz>; Sarah Bartlett <[email address]>; Karla Reynolds
<[email address]>; Cathrine McIntosh <[email address]>; James Sergeant
<[email address]>; Lachlan Cartwright <[email address]>;
[email address]; [email address]; [email address]; Cathie Jenkins
<[email address]>; mary.l ewel [email address]; Michael Sherwood [TSY]
<[email address]>; [email address]; Jil Pitches <Jil .[email address]>;
James Barnett [TSY] <[email address]>; [email address]
Cc: Katrina Melvil e <Katrina.Melvil [email address]>; Glen Hildreth <[email address]>; Michel e Schulz
<Michel [email address]>; Sal y Whineray Groom <Sal [email address]>
Subject: For comment: Draft advice on historical problem with section 99(1A) of the CCCFA
Kia ora koutou,
As we’ve communicated in our regular updates, RBNZ has been doing model ing on the potential impacts of a class
action against ANZ and ASB and we’ve been aiming to get advice on this delivered to Minister Bayly next
Released under the
Wednesday, and forwarded to the Minister of Finance.
Please find a draft of this briefing attached for comment by 10am Tuesday 8 October. Please handle with care.
Explanation for timing: We are trying to get this considered while there is stil a prospect of having a proposal
included in the Cabinet paper currently planned for ECO on 6 November. But this is a complex issue, and we want to
ensure agencies have time to contribute expertise and perspectives. Please let me know if you think this balance off
and we can discuss with our Minister’s office.
Official Information Act 1982
RBNZ model ing: The briefing attempts to summarise the conclusions from RBNZ’s model ing (for your feedback
please RBNZ). I’l leave RBNZ to forward on their paper to others as appropriate.
Nature of input we’re seeking: You’l see a number of questions we’d appreciate CoFR agencies’ help with, but of
course welcome any other feedback/views. This is stil a relatively early draft, and we may end up with less
background in the briefing we deliver. So your time is best spent focussing on the substance of the advice and
analysis, rather than structure or presentation. If you’re comfortable looping in other recipients when providing
comments, that might assist with overal visibility. I see this as one for CoFR agencies to col aborate on. I’d also be
open to arranging a time for us on to discuss on Monday next week.
2
Any concerns or questions, please let me know.
With thanks in advance for your thoughts,
nāku noa, nā
Marcus
This email may contain information that is confidential or legal y privileged. If you have received this email in error please
immediately notify the sender and delete the email, without using it in any way. The views presented in this email may not be
those of the Commission.
Released under the
Official Information Act 1982
3
From:
James Barnett [TSY] <[email address]>
Sent:
Thursday, 7 November 2024 1:50 pm
To:
Sal y Whineray Groom; Kama Khairuzin [TSY]; Disee Anorpong [TSY]; Marcus Smith
Subject:
RE: Financial Services Reforms: draft RIS for comment - proposal to make discretion
over the effect of section 99(1A) retrospective [IN-CONFIDENCE: RELEASE-
EXTERNAL] [IN-CONF D
s ENCE]
Follow Up Flag:
Fol ow up
Flag Status:
Completed
Hi Sal y,
We checked in with the office and MoF only received it last night. If it makes the weekend bag, then you may hear
early next week, but as you say she is very busy.
We can’t do much more than ask the office as above, sorry! If you don’t hear back by say Tuesday/Wednesday next
week let me know and I can ask again.
Thanks,
James
From: Sal y Whineray Groom <Sal [email address]>
Sent: Thursday, November 7, 2024 9:30 AM
To: Kama Khairuzin [TSY] <[email address]>; Disee Anorpong [TSY]
<[email address]>; Marcus Smith <[email address]>
Cc: James Barnett [TSY] <[email address]>
Subject: RE: Financial Services Reforms: draft RIS for comment - proposal to make discretion over the effect of
section 99(1A) retrospective [IN-CONFIDENCE: RELEASE-EXTERNAL] [IN-CONF DENCE]
Thank you Kama, we have heard MOF is stil considering this. Is there any way Treasury could help move
this up her list of things to look at? Appreciate she is very busy…
Given she’s stil considering this, we haven’t sent the RIS to the panel. My col eague Marcus wil consider
Released under the
your comments.
Regards, Sal y
From: Kama Khairuzin [TSY] <[email address]>
Sent: Tuesday, October 29, 2024 5:01 PM
To: Sal y Whineray Groom <Sal [email address]>; Disee Anorpong [TSY]
<[email address]>
Cc: James Barnett [TSY] <[email address]>
Official Information Act 1982
Subject: RE: Financial Services Reforms: draft RIS for comment - proposal to make discretion over the effect of
section 99(1A) retrospective [IN-CONF DENCE: RELEASE-EXTERNAL] [IN-CONF DENCE]
[IN-CONF DENCE]
Kia ora Sal y,
Thank you for sending through the dra RIS.
1
We an cipate that MBIE wil consult both Crown Law and LDAC on the proposal, par cularly as op on 2 (which wil
interfere with ac ve li ga on) is stated to be the preferred op on. We note that certain legal advice has been
redacted from the paper under the “Legal principles” heading (currently at para 55) – so am uncertain whether such
consulta on has already taken place. We are sure MBIE’s Legisla on team are al over it in any event.
Do let us know if you have any updates from your private sec regarding Min Bayly’s mee ng with MoF and if you
have s 9(2)(ba)(i)
We also agree with Sarah’s comment on ensuring this doesn’t distract from the transi on from ComCom to FMA –
as that’d get very messy (financial y) very quickly!
On the distribu on list – Elena Obolonkina, Mary Llewel yn-Fowler, and Michael Sherwood does not need to be on
the list anymore.
Many thanks,
Kama
From: Sarah Bartlett <[email address]>
Sent: Tuesday, October 29, 2024 2:27 PM
To: Sal y Whineray <Sal [email address]>; ^Regulation: Andrew Royle
<[email address]>; Gwen Rashbrooke <[email address]>; Elena
Obolonkina [TSY] <[email address]>; Owen McManamon
<[email address]>; Daryl Col ins <Daryl.Col [email address]>; Louis Campbel
<Louis.Campbel [email address]>; Alice Jackson <[email address]>; [email address]; Edwin
Mitson <[email address]>; ^RB: Victoria Learmonth <[email address]>; Mark Atwel
<Mark.Atwel @comcom.govt.nz>; James Sergeant <[email address]>; Lachlan Cartwright
<[email address]>; Debbie McLean <[email address]>; Disee Anorpong [TSY]
<[email address]>; Mark Holden <[email address]>; Mary Llewel yn-Fowler [TSY]
<Mary.Llewel [email address]>; Michael Sherwood [TSY] <[email address]>;
Nelson Curry <[email address]>; Jil Pitches <Jil .[email address]>; Kama Khairuzin [TSY]
<[email address]>; Ben Temple <[email address]>
Cc: Andrew Palmer <[email address]>; Katrina Melvil e <Katrina.Melvil [email address]>; Richard
Clough <[email address]>; Glen Hildreth <[email address]>; Tom Simcock
<[email address]>; Caroline Andic <[email address]>
Subject: RE: Financial Services Reforms: draft RIS for comment - proposal to make discretion over the effect of
section 99(1A) retrospective [IN-CONF DENCE: RELEASE-EXTERNAL]
Released under the
Kia ora Sally
Thank you for the opportunity to comment on the draft RIS.
Jill has collated the Commission’s comments and included those in the attached version of the document. I
am just back from leave today so have also added in a few comments.
The key points from our perspective are the same as those included in our feedback on the draft briefing (the
Official Information Act 1982
team’s email of 8 October 2024):
Should retrospectivity be implemented, then it is important that any retrospective law change makes
clear that it does not undo or otherwise impact on any Commission settlements or other Commission
enforcement actions for disclosure failures covering the period June 2015 to December 2019, including
those where other banks (e.g. Kookmin, BNZ) made full repayment of costs of borrowing for disclosure
breaches.
We note the very real problem that any retrospective law change would effectively create a situation
where two different laws apply or have applied to lenders that may have engaged in the same or similar
2
conduct over similar periods, with one group of lenders who have relied on and complied with, or been
subject to enforcement outcomes consistent with, the current legislation, and others, who have not
complied but have not yet been subject to enforcement outcomes, who would be subject to the
proposed retrospective legislation, despite the harm to consumers being consistent across the
different periods. The retrospective effect would specifically advantage this second group of lenders
and disadvantage that group of consumers. We have a number of open investigations into lenders
following self-reports to the Commission of initial and agreed variation disclosure errors covering the
period June 2015 to December 2019 relating to tens of thousands of customers. We are working
through these investigations and take a measured view of lender liability arising from disclosure
failures during this period. The announcement of potential retrospective law change would create real
uncertainty and could significantly complicate the timely progression and resolution of our
investigations and potential future remediation payments to consumers. Lenders may be less
incentivised to work with the Commission and agree an appropriate quantum. The issues will need to
be fully addressed by MBIE so as not to create problems for the Commission.
We stress again that the Commission is keen for the transfer of the enforcement function for the
CCCFA from the Commission to the FMA (and associated transfer of staffing and funding) to occur as
soon as possible. We would have concerns if the legislative time-frame for any retrospective change to
s95A meant a delay to the coming into effect of amendment legislation transferring the CCCFA
enforcement function.
Kind regards
Sarah
Sarah Bartle (she/her)
Director Credit
Compe on, Fair Trading and Credit
Commerce Commission | Te Komihana Tauhokohoko
44 The Terrace | PO Box 2351 | Wel ington 6140 | New Zealand
Mob s 9(2)(a)
| sarah.bartle @comcom.govt.nz
www.comcom.govt.nz
From: Sal y Whineray Groom <Sal [email address]>
Sent: Tuesday, 22 October 2024 5:31 pm
Released under the
To: Andrew Royle <[email address]>; Gwen Rashbrooke <[email address]>;
Elena Obolonkina [TSY <[email address]>; Owen McManamon
<[email address]>; Daryl.Col [email address]; Louis Campbel
<Louis.Campbel [email address]>; Alice Jackson <[email address]>; [email address]; Edwin
Mitson <[email address]>; Victoria Learmonth <[email address]>; Mark Atwel
<Mark.Atwel @comcom.govt.nz>; Sarah Bartlett <[email address]>; Karla Reynolds
<[email address]>; James Sergeant <[email address]>; Lachlan Cartwright
<[email address]>; Debbie McLean <[email address]>; Disee Anorpong [TSY
<[email address]>; Mark Holden <[email address]>; Cathie Jenkins
Official Information Act 1982
<[email address]>; mary.l ewel [email address]; Michael Sherwood [TSY]
<[email address]>; Nelson Curry <[email address]>; Jil Pitches
<Jil .[email address]>; Kama Khairuzin [TSY] <[email address]>;
[email address]
Cc: Andrew Palmer <[email address]>; Katrina Melvil e <Katrina.Melvil [email address]>; Richard
Clough <[email address]>; Glen Hildreth <[email address]>; Tom Simcock
<[email address]>
Subject: Financial Services Reforms: draft RIS for comment - proposal to make discretion over the effect of section
99(1A) retrospective [IN-CONF DENCE: RELEASE-EXTERNAL]
3
Kia ora koutou ComCom, FMA, RB, Treasury and Ministry of Regulation folk,
Please see attached a draft RIS for comment on options to give the courts explicit discretion over the effect
of section 99(1A) for the 2015-2019 period. This draft RIS is shared in strict confidence.
The Minister of Commerce and Consumer Affairs has not yet made a decision on the briefing that we sent
up on 10 October, but we are preparing this draft RIS in the event that he does decide he would like to
seek a Cabinet decision.
We are not able to share legal advice that we have received that has informed the RIS as it’s subject to
legal professional privilege – you wil see that where this is referred to in the RIS that it has been deleted.
Please get your feedback back to me by COP Tuesday 29 October. I am available to discuss the draft RIS
tomorrow (Wednesday) and Thursday. I am on annual leave Friday and Tuesday.
Treasury s 9(2)(ba)(i)
Therefore, we haven’t included this
in the RIS yet.
I also want to try and get the RIS down to 10 pages or less…. so always keen for suggestions of where I
can condense content.
Ngā mihi,
Sal y Whineray Groom
Principal Policy Advisor, Consumer Policy Team
Building Resources and Markets Group
Ministry of Business, Innova on & Employment
sal [email address]
Waea/Telephone: +64 4 901 6191
Level 5, 15 Stout Street, Wel ington 6011
NZBN 9429000106078
Released under the
This email may contain information that is confidential or legally privileged. If you have received this email in error please
immediately notify the sender and delete the email, without using it in any way. The views presented in this email may not
be those of the Commission.
Official Information Act 1982
CONFIDENTIALITY NOTICE
The information in this email is confidential to the Treasury, intended only for the addressee(s), and may also be legally privileged. If you
are not an intended addressee:
a. please immediately delete this email and notify the Treasury by return email or telephone (64 4 472 2733);
b. any use, dissemination or copying of this email is strictly prohibited and may be unlawful.
4
From:
Kama Khairuzin [TSY] <[email address]>
Sent:
Monday, 14 October 2024 1:31 pm
To:
Marcus Smith
Cc:
James Barnett [TSY]
Subject:
RE: For comment: Draft advice on historical problem with section 99(1A) of the
CCCFA [IN-CONF DENCE]
Follow Up Flag:
Fol ow up
Flag Status:
Completed
[IN-CONF DENCE]
Kia ora Marcus,
We're pleased to know that the briefing went through!
s 9(2)(ba)(i)
Has MBIE already factored in the potential reversal of tax revenue as one of the implications?
Many thanks,
Kama
From: Marcus Smith <[email address]>
Sent: Friday, October 11, 2024 12:23 PM
To: Elena Obolonkina [TSY] <[email address]>; Daryl Col ins <Daryl.Col [email address]>; Alice
Jackson <[email address]>; [email address]; Sarah Jaeger [TSY] <[email address]>;
[email address]; ^RB: Victoria Learmonth <[email address]>;
Mark.Atwel @comcom.govt.nz; [email address]; [email address]; James Sergeant
Released under the
<[email address]>; [email address]; [email address]; Disee
Anorpong [TSY] <[email address]>; [email address]; [email address];
Mary Llewel yn-Fowler [TSY] <Mary.Llewel [email address]>; Michael Sherwood [TSY]
<[email address]>; [email address]; Jil .[email address]; James Barnett
[TSY] <[email address]>; Kama Khairuzin [TSY] <[email address]>
Cc: Katrina Melvil e <Katrina.Melvil [email address]>; Glen Hildreth <[email address]>; Michel e Schulz
<Michel [email address]>; Sal y Whineray <Sal [email address]>
Subject: RE: For comment: Draft advice on historical problem with section 99(1A) of the CCCFA
Official Information Act 1982
Kia ora anō,
Despite some slight delays (including two rounds of advice from the CLO), we managed to get this briefing delivered
yesterday afternoon. Attached for your records. Again, handle with care please.
Thanks everyone for your feedback on the draft. As foreshadowed, we lifted it up a fair bit (saving some details for a
Regulatory Impact Statement). We also tried to remain more clearly agnostic about the possible outcome of the
litigation against ANZ and ASB, as wel as about how the proposed retrospective amendment would influence that
litigation.
1
There was a late decision to note the views of the two regulators, which I felt comfortable summarising. But note
that we are leaving ourselves room to develop the proposal further (including whether it should interfere with
active litigation or only protect lenders from new litigation) and work through some second-order issues. We wil
continue to need your expertise and cooperation in doing this, including for the purpose of the Regulatory Impact
Statement that we’re now preparing somewhat urgently.
I’m going on leave for the next three weeks and handing this over to Sal y, who wil be in touch seeking your input
on a draft RIS sometime soon.
Thanks again for al your assistance.
Kia pai tō koutou wiki mutunga
Marcus
From: Marcus Smith
Sent: Thursday, October 3, 2024 9:29 AM
To: [email address]; [email address]; Daryl.Col [email address];
[email address]; [email address]; [email address]; [email address];
[email address]; Mark.Atwel @comcom.govt.nz; [email address];
[email address]; [email address]; [email address];
[email address]; [email address]; [email address];
[email address]; [email address]; mary.l ewel [email address];
[email address]; [email address]; Jil .[email address]; James Barnett [TSY]
<[email address]>; [email address]
Cc: Katrina Melvil e <katrina.melvil [email address]>; Glen Hildreth <[email address]>; Michel e Schulz
<Michel [email address]>; Sal y Whineray Groom <Sal [email address]>
Subject: For comment: Draft advice on historical problem with section 99(1A) of the CCCFA
Kia ora koutou,
As we’ve communicated in our regular updates, RBNZ has been doing model ing on the potential impacts of a class
action against ANZ and ASB and we’ve been aiming to get advice on this delivered to Minister Bayly next
Wednesday, and forwarded to the Minister of Finance.
Please find a draft of this briefing attached for comment by 10am Tuesday 8 October. Please handle with care.
Explanation for timing: We are trying to get this considered while there is stil a prospect of having a proposal
Released under the
included in the Cabinet paper currently planned for ECO on 6 November. But this is a complex issue, and we want to
ensure agencies have time to contribute expertise and perspectives. Please let me know if you think this balance off
and we can discuss with our Minister’s office.
RBNZ model ing: The briefing attempts to summarise the conclusions from RBNZ’s model ing (for your feedback
please RBNZ). I’l leave RBNZ to forward on their paper to others as appropriate.
Nature of input we’re seeking: You’l see a number of questions we’d appreciate CoFR agencies’ help with, but of
Official Information Act 1982
course welcome any other feedback/views. This is stil a relatively early draft, and we may end up with less
background in the briefing we deliver. So your time is best spent focussing on the substance of the advice and
analysis, rather than structure or presentation. If you’re comfortable looping in other recipients when providing
comments, that might assist with overal visibility. I see this as one for CoFR agencies to col aborate on. I’d also be
open to arranging a time for us on to discuss on Monday next week.
Any concerns or questions, please let me know.
With thanks in advance for your thoughts,
2
nāku noa, nā
Marcus
CONFIDENTIALITY NOTICE
The information in this email is confidential to the Treasury, intended only for the addressee(s), and may also be legally privileged. If you
are not an intended addressee:
a. please immediately delete this email and notify the Treasury by return email or telephone (64 4 472 2733);
b. any use, dissemination or copying of this email is strictly prohibited and may be unlawful.
Released under the
Official Information Act 1982
3
From:
Kama Khairuzin [TSY] <[email address]>
Sent:
Tuesday, 8 October 2024 3:07 pm
To:
Marcus Smith
Cc:
James Barnett [TSY]
Subject:
RE: For comment: Draft advice on historical problem with section 99(1A) of the
CCCFA [IN-CONF DENCE]
Follow Up Flag:
Fol ow up
Flag Status:
Completed
[IN-CONF DENCE]
Kia ora Marcus,
Apologies for the delayed response. Glad to see that the paper is coming along wel !
We support MBIE and the FMA’s preferred timing option for having this provision in the Bil for introduction (Option
A).
We echo FMA's comments that potential impacts may be a bit underplayed in the briefing. Additional y, we think
there could be more analysis of:
The impact on competition (esp. in the context of the ComCom report). Smal er banks may require more
time to recover from a potential lawsuit (based on RBNZ model ing), reducing the capital they have available
to compete. s 9(2)(g)(i)
Any broader economic impacts. s 9(2)(ba)(i)
This could have wider consequences such as on the ability of banks to provide loans
to businesses and consumers, making it more difficult to secure access to capital - risking economic
disruption.
We also advise consulting with LDAC on the legislative design process and/or incorporating their feedback if they
have already been consulted.
Released under the
Many thanks,
Kama
From: Victoria Learmonth <[email address]>
Sent: Monday, October 7, 2024 5:04 PM
To: Nelson Curry <[email address]>; Marcus Smith <[email address]>; Elena Obolonkina
[TSY] <[email address]>; [email address]; Daryl Col ins
<Daryl.Col [email address]>; Alice Jackson <[email address]>; Nick Jeffs <[email address]>;
Official Information Act 1982
Sarah Jaeger [TSY] <[email address]>; Edwin Mitson <[email address]>; Mark Atwel
<Mark.Atwel @comcom.govt.nz>; Sarah Bartlett <[email address]>; Karla Reynolds
<[email address]>; [email address]; James Sergeant
<[email address]>; [email address]; Debbie McLean
<[email address]>; Disee Anorpong [TSY] <[email address]>; Mark Holden
<[email address]>; Cathie Jenkins <[email address]>; Mary Llewel yn-Fowler [TSY]
<Mary.Llewel [email address]>; Michael Sherwood [TSY] <[email address]>;
Jil .[email address]; James Barnett [TSY] <[email address]>; Kama Khairuzin [TSY]
<[email address]>
Cc: Katrina Melvil e <Katrina.Melvil [email address]>; Glen Hildreth <[email address]>; Michel e Schulz
1
<Michel [email address]>; Sal y Whineray <Sal [email address]>
Subject: RE: For comment: Draft advice on historical problem with section 99(1A) of the CCCFA
Kia ora Marcus,
Thank you for sharing this with us. As requested, attached is our feedback on the paper. If
anything is unclear please reach out to Mark and me – we’re happy to discuss.
Kind regards,
Vicky
From: Nelson Curry <[email address]>
Sent: Friday, October 4, 2024 10:40 AM
To: Marcus Smith <[email address]>; [email address];
[email address]; Daryl Col ins <daryl.col [email address]>; Alice Jackson
<[email address]>; Nick Jeffs <[email address]>; Sarah Jaeger <[email address]>;
Edwin Mitson <[email address]>; Victoria Learmonth <[email address]>; Mark Atwel
<Mark.Atwel @comcom.govt.nz>; Sarah Bartlett <[email address]>; Karla Reynolds
<[email address]>; [email address]; James Sergeant
<[email address]>; [email address]; Debbie McLean
<[email address]>; Disee Anorpong <[email address]>; Mark Holden
<[email address]>; Cathie Jenkins <[email address]>; Mary.Llewel yn Fowler
<Mary.Llewel [email address]>; Michael Sherwood [TSY] <[email address]>;
Jil .[email address]; James Barnett [TSY] <[email address]>; Kama Khairuzin
<[email address]>
Cc: Katrina Melvil e <Katrina.Melvil [email address]>; Glen Hildreth <[email address]>; Michel e Schulz
<Michel [email address]>; Sal y Whineray Groom <Sal [email address]>
Subject: RE: For comment: Draft advice on historical problem with section 99(1A) of the CCCFA
Hi Marcus
Thanks very much for sharing this. Seeing the detail of this issue has been useful to better understand the
size/scale of the potential scenarios. I’ll come back separately with suggestions on the briefing but wanted to
signal our high-level view for MBIE and the group.
Happy to discuss
Released under the
Thanks
Nelson
Option
We agree there is a case to apply retrospective legislation to expressly allow the court to consider relief from s
99(1A), which we briefly covered during the first Cabinet paper.
Timing
Official Information Act 1982
Our firm preference would be having this provision in the Bill for introduction. This:
draws the court’s attention as soon as possible to this option being considered by Parliament, and
provides the public and the affected entities time to consider and provide views at Select Committee.
I’m less certain whether a ‘being introduced during the legislative process’ will work in a useful and
constructive way. If it is not included for introduction, industry may reasonably assume the option is out and
continue to raise concerns. If Cabinet decides, and the Minister announces, that it’ll be included later on, then
the Select Committee process won’t include consideration of a draft provision (a form of natural justice and
2
useful scrutiny). There may also be a different spotlight on the issue at Select Committee if the Bill does not
have a provision in at that point (rather than if it does). The next available option for the provision is the Select
Committee report back (approx. July). This is a long time away to leave uncertainty about what this provision
might look like.
Reasoning
I’ll come back to you with more detail on this but, at a high-level, I wondered:
if the potential impacts might be a bit underplayed in the briefing. The outcome where there are impacts on
capital ratios and banks have noted concerns about the confidence of depositors is quite a serious one
and will impact the markets in some way.
if it is too distracting to get too much into weighing up what the court might decide. It is enough of a risk
that the court could decide it cannot provide relief (even if the probability of that is unknown). Noting this
is more an area for Crown Law and the Commission to advise on, it is quite rare for the court to use its
inherent jurisdiction. Parliament has been very clear when it introduced the 2019 amendments that courts
do not have this ability. This risk may be heightened where the proceedings develop and the Bill as
introduced is silent on this.
Preferably, Parliament should be clear that courts have the ability to consider what relief (if any) is appropriate
to mitigate this risk. This is quite different than intervening to e.g. overturn a ruling, determine the outcome, or
determine the quantum of sums owed.
Nelson Curry Principal Adviser, Regulatory Policy
T s 9(2)(a)
E [email address]
Level 2, 1 Grey Street, , 6011
PO Box 1179, Wellington 6140, New Zealand
www.fma.govt.nz
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Thank you.
From: Marcus Smith <[email address]>
Sent: Thursday, October 3, 2024 9:29 AM
To: [email address]; [email address]; Daryl Col ins
<Daryl.Col [email address]>; Alice Jackson <[email address]>; [email address];
[email address]; Edwin Mitson <[email address]>; victoria learmonth
Official Information Act 1982
<[email address]>; Mark.Atwel @comcom.govt.nz; Sarah Bartlett
<[email address]>; Karla Reynolds <[email address]>;
[email address]; James Sergeant <[email address]>;
[email address]; Debbie McLean <[email address]>;
[email address]; [email address]; Cathie Jenkins <[email address]>;
mary.l ewel [email address]; Michael Sherwood [TSY] <[email address]>; Nelson
Curry <[email address]>; Jil .[email address]; James Barnett [TSY]
<[email address]>; [email address]
Cc: Katrina Melvil e <Katrina.Melvil [email address]>; Glen Hildreth <[email address]>; Michel e Schulz
3
<Michel [email address]>; Sal y Whineray Groom <Sal [email address]>
Subject: For comment: Draft advice on historical problem with section 99(1A) of the CCCFA
Kia ora koutou,
As we’ve communicated in our regular updates, RBNZ has been doing model ing on the potential impacts of a class
action against ANZ and ASB and we’ve been aiming to get advice on this delivered to Minister Bayly next
Wednesday, and forwarded to the Minister of Finance.
Please find a draft of this briefing attached for comment by 10am Tuesday 8 October. Please handle with care.
Explanation for timing: We are trying to get this considered while there is stil a prospect of having a proposal
included in the Cabinet paper currently planned for ECO on 6 November. But this is a complex issue, and we want to
ensure agencies have time to contribute expertise and perspectives. Please let me know if you think this balance off
and we can discuss with our Minister’s office.
RBNZ model ing: The briefing attempts to summarise the conclusions from RBNZ’s model ing (for your feedback
please RBNZ). I’l leave RBNZ to forward on their paper to others as appropriate.
Nature of input we’re seeking: You’l see a number of questions we’d appreciate CoFR agencies’ help with, but of
course welcome any other feedback/views. This is stil a relatively early draft, and we may end up with less
background in the briefing we deliver. So your time is best spent focussing on the substance of the advice and
analysis, rather than structure or presentation. If you’re comfortable looping in other recipients when providing
comments, that might assist with overal visibility. I see this as one for CoFR agencies to col aborate on. I’d also be
open to arranging a time for us on to discuss on Monday next week.
Any concerns or questions, please let me know.
With thanks in advance for your thoughts,
nāku noa, nā
Marcus
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4
From:
James Barnett [TSY] <[email address]>
Sent:
Thursday, 19 September 2024 3:18 pm
To:
Marcus Smith; Elena Obolonkina [TSY]
Cc:
Kama Khairuzin [TSY]
Subject:
RE: section 99(1a) of the CCCFA - industry feedback s 9(2)(b)(ii)
[IN-CONF D
s
ENCE]
Hi Marcus,
Thanks for the offer – no need for a meeting at this stage.
James
From: Marcus Smith <[email address]>
Sent: Thursday, September 19, 2024 2:35 PM
To: Elena Obolonkina [TSY] <[email address]>
Cc: James Barnett [TSY] <[email address]>; Kama Khairuzin [TSY]
<[email address]>
Subject: RE: section 99(1a) of the CCCFA - industry feedback s 9(2)(b)(ii)
[IN-CONF D
s ENCE]
Kia ora Elena,
Not sure if you’re back yet (after you had to cancel our hui), but stil happy to help with this.
Marcus
From: Elena Obolonkina [TSY] <[email address]>
Sent: Friday, September 13, 2024 5:00 PM
To: Marcus Smith <[email address]>; Glen Hildreth <[email address]>
Cc: James Barnett [TSY] <[email address]>; Kama Khairuzin [TSY]
<[email address]>
Subject: RE: section 99(1a) of the CCCFA - industry feedback s 9(2)(b)(ii)
[IN-CONF D
s ENCE]
Hi Marcus,
Released under the
Thanks for this, it is helpful context. s 9(2)(b)(ii)
A cal would be great. Does 2pm Monday work?
Thanks very much, and have a great weekend!
Official Information Act 1982
Best Regards,
Elena
Elena Obolonkina (she/her) | Analyst Financial Markets | Te Tai Ōhanga – The Treasury
1
Tel: s 9(2)(a)
| Email/IM: [email address]
From: Marcus Smith <[email address]>
Sent: Friday, September 13, 2024 4:30 PM
To: Elena Obolonkina [TSY] <[email address]>; Glen Hildreth <[email address]>
Cc: James Barnett [TSY] <[email address]>; Kama Khairuzin [TSY]
<[email address]>
Subject: RE: section 99(1a) of the CCCFA - industry feedback s 9(2)(b)(ii)
[IN-CONF DENCE]
Kia ora Elena,
Happy to work with you / help with content for your briefing next week. Answers to your immediate questions are:
s 9(2)(b)(ii)
The relevant policy decision is found in recommendation 8 of the Cabinet paper, but that change wil only
apply prospectively (to disclosure failures that occur after commencement). As discussed with James and
Kama on Monday, we are working with RBNZ to develop further advice on consequences for historical (pre-
December 2019) disclosure failures.
s 9(2)(b)(ii)
We are trying to
understand the potential impact on lenders more general y. But I note:
o s 9(2)(b)(ii)
o The risk for lenders other than ASB and ANZ is secondary – it only arises if the class lawsuit goes so
wel for the plaintiff that it incentivises further litigation.
o This liability has a time limit of three years after the breach was discovered or ought reasonably to
have been discovered.
Shal we book in a chat for early next week?
Best
Marcus
From: Elena Obolonkina [TSY] <[email address]>
Sent: Friday, September 13, 2024 2:42 PM
Released under the
To: Glen Hildreth <[email address]>; Marcus Smith <[email address]>
Cc: James Barnett [TSY] <[email address]>; Kama Khairuzin [TSY]
<[email address]>
Subject: section 99(1a) of the CCCFA - industry feedback s 9(2)(b)(ii)
[IN-CONF D
s ENCE]
[IN-CONF DENCE]
Kia ora Glen, Marcus
Official Information Act 1982
I am reaching out on a ma er that relates to industry feedback on the sec on 99(1a) of the CCCFA, discussed in the
financial services reforms paper (Financial services reforms: policy decisions).
s 9(2)(b)(ii)
2
Could you please let me know –
(i)
What (if anything) has the industry raised around the provisions discussed in para 31-37 that they are
concerned about?
a. s 9(2)(b)(ii)
(i )
What have been the policy decisions taken in that space in response to the feedback?
(i i)
s 9(2)(b)(ii)
Thank you very much in advance for answering my ques ons. Happy to talk on the phone if needed.
Is it possible to get back as soon as you can – by early next week?
Ngā mihi,
Elena
Elena Obolonkina (she/her) | Analyst Financial Markets | Te Tai Ōhanga – The Treasury
Tel: s 9(2)(a)
| Email/IM: [email address]
CONFIDENTIALITY NOTICE
The information in this email is confidential to the Treasury, intended only for the addressee(s), and may also be legally privileged. If you
are not an intended addressee:
a. please immediately delete this email and notify the Treasury by return email or telephone (64 4 472 2733);
b. any use, dissemination or copying of this email is strictly prohibited and may be unlawful.
Released under the
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3
