Penalties: Andrews round two?

In September 2012, the High Court threw the law of penalties into a state of uncertainty following its decision in Andrews v Australia and New Zealand Banking Group. Now, more than 12 months later, the trial judge whose decision was overturned in Andrews, has handed down a judgment applying the Andrews principles to many of the same issues. It is hoped that this decision may be the first step to the High Court clarifying the scope of the penalties doctrine.

Andrews decision

In Andrews, the High Court was asked to decide whether a payment (in this case certain bank fees) could be a penalty in circumstances where there was no breach of contract. Importantly, the Court was not asked to decide whether the bank fees in question were, in fact, a penalty.