Sentencing — making false or misleading representations — overcharging — failing to fulfill agreed terms — failing to provide member benefits — amortisation — overcharging interest — overcharging fees — Fair Trading Act 1986, ss 13(i) & 40(1) — Financial Markets Conduct Act 2013, s 22 — Credit Contracts and Consumer Finance Act 2003, s 9C — Commerce Commission v L D Nathan & Co Ltd [1990] 2 NZLR 160 — Commerce Commission v Steel & Tube Holdings Ltd [2020] NZCA 549 — Commerce Commission v Mercury New Zealand Ltd [2023] NZDC 7018. The defendant had pleaded guilty to 21 charges of making false and misleading representations. The offending arose from longstanding problems in the defendant's systems and processes, but the charge period reflected a shorter timeframe of some five years. Because of its systemic problems, the defendant had failed to fulfill the terms of service that it had agreed with its customers. The parties had agreed that there were five different categories of offending. These included the defendant's failure to provide agreed discounts to some customers; its failure to properly calculate some loan repayment amounts; its failure to charge some customers the correct overdraft interest rates; and its continuing to charge some customers fees that it had either removed or reduced in amount. The defendant had realised its errors and had reported them to the prosecution. It had also apologised to the affected customers and at the time of judgment was in the process of paying them compensation. The prosecution submitted that the offending had undermined the objective of the Fair Trading Act to provide consumer protections. The Court set a start point for sentence of a $2.3 million fine. In mitigation the defendant had pleaded guilty, had cooperated with the investigation, and had made significant steps to remedy the harm caused (it had undertaken to ultimately repay more than $9 million in compensation). The total fine was $1.5 million. Judgment Date: 26 November 2024