Someone’s brothers, someone’s sons

Below is the text of an address delivered by former Sergeant-Major of the New Zealand Army, Bob Davies, at the Onward Bar in Taupo on ANZAC Day 2021.

“This morning I will to relate to you an action that upheld the finest traditions of one of the New Zealand Army’s premier fighting units, the 1st Battalion, the Royal New Zealand Infantry Regiment, the only battalion that has added a Battle Honour to its colours since World War 2. Unlike most stories this Anzac Day though this is not one about combat in far-flung fields. It is a story that played out very close to here some thirty years ago. A story as epic as any that will be told this Anzac Day and unfortunately a story too few in New Zealand know much about. It is a story about two senior soldiers and another young man who demonstrated they are cut from the same cloth that the finest of this Regiment has seen. These soldiers were involved in an incident that claimed more lives than any other single action since WW2.

On the morning of Thursday 9 August 1990, 10 soldiers from B Company, 1 RNZIR, together with a Naval rating and two instructors from the Army Adventurous Training Centre, commenced a mountaineering course on Mount Ruapehu. 13 personnel departed Waiouru Camp that morning. Only seven returned.

The weather on the 9th of August was very good, with clear skies and light winds. The group spent the first day, a Thursday, climbing to the summit and conducted some practical training.On Friday, the group spent the day constructing two snow caves and a snow dome and then slept that night in those shelters. The next morning, Saturday, the weather deteriorated significantly, with very strong northerly winds and very low visibility. The group remained sheltering in their snow caves for a second night. On the following day (Sunday), the decision was made by the instructors to move back to the Dome Shelter. It was from then on that serious difficulties began to develop.

On leaving the shelter of their snow caves, the group was exposed to the full force of the storm that had now developed. Visibility was reduced to a few meters and the wind had significantly increased to an estimated strength of around 150kph; strong enough to lift members of the group off the ground. The decision was made to halt and attempts made to dig trenches and use the packs to provide some shelter from the wind. The group was now on the flat Col, approximately 200 meters from the Dome Shelter; probably the most exposed position on the mountain at that time.

After remaining in this location for two to three hours, a second, unsuccessful attempt was made to find the Dome Shelter. It was then that the first hypothermic cases became apparent. The group stopped whilst casualties were attended to and attempts were made to construct a snow shelter. This proved impossible due to the ferocity of the storm. The group then attempted to “dig in” in that location. At this point, two members of the group were hypothermic, one was suffering from frost bite and a number of others close to exhaustion. A decision was made to seek assistance and the senior instructor, Sgt Snowden, together with Pte Brendon Burchell, departed down the mountain. The time was now approximately 1630hrs.

Throughout that night, the storm continued with the same ferocious intensity. By this time, the soldiers were without any experienced leadership, as the lone instructor left on the mountain had become non-effective. Ptes David Stewart and Sonny Te Rure (now known as Sonny Tavake) constantly moved about the group, offering encouragement and attempting to alleviate the suffering by giving over some of their own clothing and equipment. They were assisted in their efforts by LCpl Culloty and Pte Berger.

In the words of LCpl Culloty “….word filtered back that an instructor had gone for help and for the remainder to break out their sleeping bags. By the time this reached Pte’s Stewart, Tavake, and myself, those that were able had done so, however 3 – 4 soldiers displaying signs of hypothermia, were incapable of this. We gathered them into a group and Ptes Stewart and Tavake went in search of packs to get the sleeping bags out. This was no easy task as visibility was near zero and many packs were buried in snow that became ice in a very short period or had blown away. Each time a sleeping bag was found, they came back to the group and took one away and put him in a sleeping bag as best they could.

They left finding sleeping bags for themselves until last. They came back to find the last person there (myself) had collapsed. Pte Stewart dragged me to a bag and managed to get my legs and lower torso into it. He then put a survival bag around my upper body. There was by then only one sleeping bag for Ptes Stewart and Tavake as no other packs could be found. They covered themselves as best they could.As the night progressed the direction of the wind changed constantly, resulting in large amounts of snow building up on my chest then freezing solid. As the weight increased, I began to have difficulties breathing and called for help. Pte Stewart leaned over and eventually was able to clear the snow and ice off my chest allowing me to breathe normally. He did this approximately six times during the night. Later, a soldier not far from me had his bag blown away and I got him to join me, and in doing so, my survival bag blew away, so we used the remainder of my sleeping bag to cover our heads and shoulders.

Later a soldier from the end of the group crawled over and said that the person he had been sharing a bag with had died. We told him to go back, remove the body from the bag, and get in, and he left to do so. He then came back and said that he could not find his sleeping bag (I assume it had already been covered with snow). He asked if he could join me and the soldier with me, and I told him no, as there was no room and that he should find somebody with a bag to themselves. He returned a short time later having found no shelter, and again asked for help. At this point, Pte Stewart told him to join him and Pte Tavake in their single sleeping bag. In doing this, their sleeping bag was blown away and the three of them were without any shelter whatsoever.

After this, we began to grow weaker and weaker. The soldier who had been with Ptes Stewart and Tavake crawled over beside my head and began talking incoherently and died. Some hours later the soldier who was sheltering with me became delirious and died also.After many hours, when I occasionally called out and received no reply, I assumed that all but myself had perished. Later the weather, though still extreme, lessened in intensity for a while and I made contact with others and we were subsequently rescued. As we were brought into the Dome Shelter, I was surprised and pleased to see Pte Tavake, and we were both shocked that only five of us had survived. It seemed impossible that Pte Stewart, given his physical and moral strength, leadership and selflessness, should have died.

I have no doubt in my mind that if he had chosen to take care of himself he would be here today. He chose instead to put others before himself and to risk time and again, his own survival to help those unable to help themselves. All this in an extreme environment where we novices were left to our own devices. I would not be here today but for his actions. That is the man he was.

Around 0530hrs on Monday Sgt Snowden and Pte Burchell having walked some 13 hours through the night, made physical contact with an Alpine Lift staff member who contacted the Duty DOC Ranger. The search and recovery then commenced. The first recovery team reached the Dome Shelter at approximately 1300hrs, and on finding nobody there, descended to the Col where they located the group. They found only 5 survivors who were then moved to the Dome Shelter.

In due course a Court of Inquiry was established to investigate the loss of life. Among other findings, the Court noted the “outstanding courage and bravery” shown by a number of the group, namely Ptes Stewart, Tavake and Burchell. In the case of Pte Burchell, the Citation noted that “..Private Burchell not only had to cope with the most extreme conditions but, because of his lack of experience, he had no knowledge of how to overcome them. His courage and determination and perseverance to continue in the face of extraordinary adversity not only brought great credit on himself, but certainly assisted in the rescue of the survivors…” The Court recommended they be formally recognised with an appropriate bravery award. In the case of Stewart that was to be with the award of the George Cross. Under the imperial honours system then extant, the level one award, and now the New Zealand Cross. Some nine years later Ptes Stewart, Tavake and Burchell were finally awarded the New Zealand Bravery Medal, a level 4 award, the lowest that recognises bravery. Of significance, the Citation noted that, despite the dreadful conditions, “…Privates Stewart and Tavake maintained a continual vigil over their companions throughout most of the night, providing what assistance they could.” The Citation further noted that “.. Private Stewart would have been fully aware that his actions in continually moving out of shelter and the warmth of his sleeping bag to assist those with hypothermia, meant he had an increased chance of also becoming a casualty. He was also aware that he was becoming increasingly exhausted by continually battling the elements.” It added that “Privates Stewart and Tavake displayed selfless care of the casualties and their sense of responsibility to their companions testify to their bravery”.

It is also worthy of note that both Stewart and Tavake had spent most of their soldiering in the tropical conditions of SEA from which they had only relatively recently returned. Moreover, these soldiers battled the life-threatening conditions for almost two days without concern for their own safety. In doing so Stewart died and Tavake still suffers from the effects of severe frost bite.

The following are so far the only two recipients of the New Zealand Cross:

On 24 April 1992 Jacinda Margaret Amey was one of five members of a Meteorological Service team, stationed on the remote sub-Antarctic Campbell Island, who were snorkelling when one of them, Mr Mike Fraser, was attacked by a shark, believed to be a white pointer. The other swimmers, apart from Ms Amey, swam to shore. Ms Amey waited until the shark moved away from Mr Fraser and then went to his aid and towed him to shore. Mr Fraser had lost his right forearm and his left forearm was severely lacerated and appeared to be broken. He was having trouble breathing and required urgent medical treatment. Having got him to shore, Ms Amey then joined the rest of the team in doing what they could for Mr Fraser until he could be flown to New Zealand. Ms Amey displayed great courage and bravery with complete disregard for her own safety in going to Mr Fraser’s assistance.

And the second recipient:

On 9 June 1995, Reginal John Dixon, aged 47, and his wife were passengers on Ansett New Zealand Flight 703 when the aircraft crashed in the Tararua Ranges near Palmerston North. Mr Dixon escaped from the wreckage with fractures. However, despite his injuries, he returned to the aircraft to help other passengers trapped in the wreckage. As a result of this selfless action, he was critically burned when a flash fire broke out on the left wing of the aircraft near a hole in the fuselage from which he was helping passengers escape. He was hospitalised and underwent surgery and skin grafts. Mr Dixon remained in a coma, and although he made some initial improvement, his condition worsened and he died two weeks later, the fourth victim of the crash. The situation in which Mr Dixon found himself was extremely dangerous and he displayed great bravery in returning to the aircraft, although injured, to help other passengers which subsequently resulted in the loss of his own life. His bravery undoubtedly ensured that the loss of life was not greater.I ask you were David Stewart’s actions over almost two days not equally as heroic as these two New Zealand Cross recipients? If so why then was he not appropriately recognised with a level one award.

There was another climber on the mountain that day, a Japanese George Iwama, who remained there for 5 days during the same blizzard. He related: ‘There was a white-out and terrible freezing conditions 20 or 35 minutes after I left the snow cave… ‘I couldn’t locate where I was walking and I decided to dig another snow cave.’ He of course survived.

I ask you: was it that the award of the New Zealand Cross would have brought undue attention to the very real shortcomings of the New Zealand Army and its Army Adventurous Training Centre?

I’ll let you decide.

The latest Listener has an excellent 5 page article on this tragedy by Karl Du Fresne.

More to follow…

Airfix Gnat – the original…

I couldn’t resist this when it appeared on Trademe (our national equivalent of Ebay) just as our COVID-19 lockdown period ended and normal(-ish) services resumed… Airfix has more recently (in the last decade or so) released a complete new tool of this classic little British aircraft – perhaps more recognisable from Hotshots? – that meets […]

Airfix Gnat – the original…

Feet on the ground

Serendipitously I have found some fully fenced accommodation in National Park Village, it even has mountain views!

I’ve been here about a month now and am finally getting settled in, resuming my duties as the commandant of Colditz Castle as Louie tries to find ways out.

Louie and Kala seem to be adjusting to the sights and sounds of urban life, although Louie clearly misses being able to slope off into the bush for a couple of hours at a time.

The neighbours two down have Corgis and a visiting puppy and Louie spends a lot of time checking the neighbours out from the second story lounge.

This isn’t our permanent home but it gives us some breathing space to hunt around and stay together – if this opportunity hadn’t come up, I would have been making some tough decisions in March after getting back from the EMA course.

It’s getting colder now and we have the fire on most days. Without tbe elevated ceiling of the Lodge, heating the lounge when I get home from work each night only takes about the same amount of time as it takes to feed the dogs so we now have a fixed routine in the evenings.

It’s not worth trying to build here over winter, so hopefully this place will keep us going til spring when we hope to acquire some land to build on…

Watch this space…

Moving on…

Well, it’s been a month or so since the big move…am settled for now in National Park Village and the dogs are happy in their respective foster homes…

I’m sure she misses me…

…and him too @K9 Heaven in Auckland…

Just about everything is in storage and I’m slowly starting the big downsize…in the end I left a lot of stuff behind as I realised I didn’t really want or need it, nor the hassle of trying to unload it through Trademe or the buy and sell boards…

Looking pretty empty

Didn’t finish the final move until 4AM on the settlement day but by then I just wanted to be well shot of the place. No final pix as I accidentally packed my phone in one of the last loads…

National Park at night, walking home from work…

I’m liking living in the Village for now, being able to walk to and from work each day, meeting people, having occasional chats on the roadside, getting a feel for the Village vibe, not being last on the truck when the siren sounds…but…I miss the dogs and that’s my main motivation to find a new home.

Renting in the Village is not really an option as no one has heard of fences and dogs just run free, so it’s really a choice between buying an existing home or a block of land to put something on. The pickings are pretty slim in the Village, or even in Raurimu where we moved from but there are possibly some options in and around Owhango, although that would be the end of the walk to work thing…

Worse case scenario is opting to rehome Louie and Kala which opens up my own rehoming timeline but a a big cost…I’m away on course the next two weeks and will have to start sizing that option up on my return…

So, Thursday last…

So what went down on Thursday last week…?

ANZ at its very worst conduct…

Red Crater on the Tongariro Alpine Crossing

Thursday was the day for hearings into the granting of concessions (licenses) for commercial guiding operations on the Tongariro Alpine Crossing. These have potentially great implications for our small local business community, especially the smaller members. I had made a submission on the concessions and needed to be at the hearing to speak to my submission and hear the other speakers. Community stuff.

I was under the understanding that the final decision on the tender for my home would not be until the following day so felt secure heading away for the day. 

At 11AM, just after the hearing started my lawyer messaged me to read my email. ANZ through its lawyers, Bell Gully, has given us til 3PM to accept another $2.5k in exchange for for a pre-Christmas settlement. ANZ has failed again and again to keep us informed on the progress of the forced sale of my home let alone any of the details. It has largely dumped this off on the young local real estate agent – to me, an act of total and abject cowardice on ANZ’s part. 

Most else that i know of the process I learned from the tenderer.

It was difficult to make a decision when we didn’t know what the original settlement date was. Neither did Bell Gully (yes, really!). We discussed options and advised ANZ that we could beat the tender offer and that there was other interest in the property. We thought this other interest was really as they seemed comfortable with the $380k ballpark figure that Harcourts gave them.

Typically – in our experience  – the Bell Gully letter was full of errors, no doubt due to the source of the information in ANZ.

(a) The Property was marketed for four weeks prior to the auction, and this has been followed by a further two week marketing campaign prior to the tender date. Since the auction, the agent contacted all previously interested parties to ensure they had the opportunity to submit a tender.

“…a further two week marketing campaign …” Not quite. The tender was not listed online until I had Harcourts head office on about the lack of marketing. Signage did not go up until halfway through the tender period. Prospective buyers making general inquiries about the district at Harcourts were not told of the property.

Following the marketing of the Property prior to the auction, Harcourts estimated the sale price of the Property would likely be between $250,000 and $280,000. ANZ also obtained a valuation from an independent registered valuer which put the forced sale range at between $262,500 and $300,000. The Tender price is within these ranges.

The tender price is conveniently at the bottom of ANZ’s assessed range. These figures beg the question “Why was Harcourts telling prospective buyer that the ballpark price for the property was $380k?”

ANZ’s reason for adopting the tender process was due to concerns that, in light of events leading up to the auction (including your client’s social media posts), proceeding with the auction at that time may not have resulted in the best sale price reasonably obtainable for the Property.

Blatantly false. If that statement held the slightest drop of water, why did ANZ wait until the morning of the auction, when people were already assembling for it, to cancel it? Surely it had nothing to lose in running the auction and then opting for a tender if the auction did not bring the result it wanted? ANZ was under no compulsion to accept any offer made in the auction and could have passed it in if it was not getting the bids it wanted. Certainly a tender was unlikely to achieve a better return than an auction.


Credit:Shutterstock / Patricia A. Phillips

The reference “…in light of events leading up to the auction…” can only refer to the questions asked by 1 News the previous day. Questions about it’s dirty laundry obviously make ANZ uncomfortable. Ditto for “…your client’s social media posts…”  I checked regularly and was not informed of any adverse effects. Once again, it seems the only issue here is ANZ’s sensitivity to dirty washing and sunlight…

Potential purchasers have been nervous whether they will be able to get vacant possession of the property on the settlement date due to Mr O’Neill’s posts on social media.

Possibly however, again, this was not ever raised in regular checks with Harcourts. There were however discussions re my willingness to remain as a tenant.

There is a risk that buyers may begin to worry why the house is not selling if the sale is further delayed and moved to an 8 week campaign after the holiday period.

Right back at you, ANZ…surely this was the greater risk in the last-minute cancellation of the auction? That was hardly a confidence-engendering action, was it?

The location of the Property and its history have limited the number of buyers attracted to the Property.

“…The location…”? Situated on the volcanic plateau, five minutes drive from National Park Village, on the periphery of Tongariro National Park, directly overlooking the Raurimu Spiral Scenic reserve, twenty minutes drive from the biggest ski field in New Zealand and the one currently undergoing the biggest development in its history.

This location..?

“…its history…” For those who don’t know, here is ‘its history‘.- actually not much more than a piece of muck-raking from the NZ Herald. The truth is that, when this happened the house was barely ten years old…it has spent a greater period as a happy family homes with kids and dogs running around it…and goats and sheep and chickens…and the odd cat..

Further, we discussed ‘its history’ as part of the marketing plan. As that incident occurred over twenty years ago, the only reason that we decided to mention it was to cover any concerns arising not so much from the incident itself but the body of ignorance around it. But again, the reports from Harcourts were all positive, even though this was an issue that we were actively tracking…

The current Tender price may be “as good as it gets”.

Really…? When we said we would better the tender offer and when there had been other buyer interest in the property that had not been deterred by Harcourts’ $380k ‘value’… For perspective the rating value of the property is $425k..

So coming back to Thursday. It wasn’t til mid-afternoon that we were able to respond to the nonsense in ANZ’s latest – the 3PM deadline was never doable – but my lawyer was talking with them all afternoon. 

Early that evening, my mortgage broker, ironically the same one who got us into this property in 2004, said she was confident i could get finance to beat the tender…

Not longer after, this arrived…

This is what getting screwed by ANZ looks like…

It really looks like ANZ was more focused on doing harm that ever realising a realistic return from this sale – it loses as well but that’s how spite works – obviously wanting to send a message about the true cost of standing up to its reckless lending and predatory conduct…It seems to have dead set on blocking an opportunity for me to buy the property back – where it still would have gained more than it got from the successful tender – than ever doing right by its shareholders and seeking the best possible result, which would have been the best result for all concerned…

The ethical divide

…or, as we locals know it, the Tasman Sea, that large wild body of water that separates Australia from New Zealand. The big blue thing that keeps everything known to mankind that can kill you in Australia, and keeps New Zealand clean and green…

…except for banking where the process is reversed and the bad practices now being exposed by Rebecca Orr and the Australian Banking Royal Commission propagate across the Tasman into our fair land… Conversely, it would seem that remedial action, however slow, in Australia, doesn’t swim…

These principles are from ANZ’s 2017 Corporate Sustainability Review. It is largely focussed on ANZ operations in Australia but its scope includes ANZ New Zealand. Sadly, as you can see below, such initiatives by ANZ seem to be only limited to ANZ Australia – where is ANZ New Zealand’s Customer Fairness Advisor?

The former Australian Commonwealth Ombudsman, Colin Neave, was appointed as ANZ’s Customer Fairness Advisor. The Customer Fairness Advisor role is focussed on minimising reputational risk, and the risk of regulatory intervention, which may arise from:

• the retention or development of products which have an unfair impact on our retail and small business customers;

• shortcomings in the way in which we manage customers in financial difficulty and assess suitability for lending; and

• broader stakeholder concerns about the culture and values of large financial institutions.

During the year, Colin Neave developed customer remediation principles to assure our customers that ANZ will acknowledge and compensate for any failures quickly

ANZ corporate sustainability review 2017 p21

It’s not that bold a statement to suggest that ANZ New Zealand’s only awareness of the concept of reputational risk comes from the highly-critical Financial Markets Authority and Reserve Bank’s reports last month on banks’ culture and conduct in New Zealand. They are both worth a read: Culture and Conduct and Bank Incentive Structures.

ANZ New Zealand is:

  • a bank that loaned vast amounts to a borrower recovering from a serious head injury; 
  • a bank that failed to determine if the loans were repayable. When I first found out about them in 2013, the accrued debt was just over $400k, with a company that had assets scarcely half that amount.
  • a bank that failed to to disclose this lending to me as the guarantor of that lending, even though by every standard of conduct, it should have.
  • a bank that, when challenged about this debt, lied about being authorised to disclose this information to me as the guarantor.
  • a bank that continued to lie by claiming that the Credit Contracts and Consumer Finance Act prevented that disclosure to me.
  • a bank that kept on lying when it made up information from the Code of Banking Practice to support its argument that disclosure obligations for guarantees and security are different. (they may be for some banks but for ANZ, by its own definitions, guarantees are part of security.)
  • a bank that, even when we said we could beat the sole tender offer and when there was other interest in the property, still accepted that single low tender offer.

So…ANZ New Zealand, where is your Customer Fairness Advisor? God knows you need one (at least)…

All the striking force of the wettest bus ticket

Once again the Office of the Banking Ombudsman strikes with all the power of the wettest of bus tickets…

All we can do is continue to push back…eventually the weak link will give way…

Thanks, Nicola

I am concerned that the best time-frame your “Early Resolution Team” can deliver is three months, more so when ANZ is already trying to forcibly sell my home now.

Further, for the record, your office did not respond to my last complaint. You did not comment on the evidence presented to you of:

– ANZ’s quite deliberate deception and obstruction, including the blatant fabrication of evidence.

– ANZ’s acceptance of guarantees as forms of security enabling its obligation of disclosure under the Code of Banking Practice.

– ANZ’s reckless lending and failure to ensure, under the Code, that the – borrower was reasonably able to repay the loaned amounts.

– ANZ’s statements that it did have an obligation of disclosure, especially where additional lending might cause the guarantor to reconsider giving the guarantee or where that lending was outside the purpose for which the guarantee was originally given.

Even when directed by the chair of the Banking Ombudsman Scheme to review this case, your office deliberately restricted that review to the process and not the issues raised.

You have attempted to deflect inquiries to government agencies like the Privacy Commission, Commerce Commission, etc but in each case, these government agencies have referred the matters raised back to you.

Unfortunately for the banking public of New Zealand, your office remains the primary watchdog against predatory bank practices. It beggars belief that even after the two reports released by the FMA and Reserve Bank on banking culture and conduct (Bank Incentive Structures, Bank Conduct and Culture, that your office remains on protecting offending banks from the consequences of their poor conduct. It is the failure of the Banking Ombudsman Scheme that has allowed banks in New Zealand to take advantage of the vulnerable and disadvantaged.

Simon O’Neill

Living in limbo

So…yup…the game goes on…

Tenders for my home closed on Friday night and, as I understand it, there was only one response and that was a very low offer i.e. less than the adjacent property that sold a couple of months ago but which is not much more than four hectares of blackberry and a small totally non-compliant residence – compared to a fully compliant three-bedroom home, with a large garage, sleep-out, and sealed driveway on thee hectares of regenerating native bush…

Pretty much what we expected. ANZ is terrified of media coverage exposing its reckless lending and the deceptions it employed to cover it up. In a desperate attempt to shield the forced sale of my home from such attention, it cancelled the well-subscribed auction on 8 November in favour of a less favourable tender process. Many buyers who will happily bid at an auction will not submit a tender proposal because they see it – rightly – as carrying more risk than an auction.

ANZ can accept this low offer – and lose even more. It could reschedule the auction it so untidily cancelled on 8 November – after a suitable period of remarketing. It could accept that this is not going to get any better, cut its losses and make right the damage that it has dome over the last fourteen years…

So, here we are ANZ, Plan B worked no better than Plan A. Your sole response won’t come anywhere close to the amount of money that you are demanding as a result of your unchecked and reckless lending processes, your total and blatant disregard for the obligations placed on you by the Code of Banking Practice

Maybe it’s finally time to do the right thing, to cut your losses and make good the damage you have done…?

In other news, thank you to every one who called or messaged to give the Banking Ombudsman a nudge on Friday. I think that we can safely say that the message was received. While the Banking Ombudsman was too busy to make a simple call to ANZ to query its tender process under its fair, reasonable, ethical and consistent obligations in the Code, she did find the time to call me twice, and then my lawyer to complain about it.

Unfortunately this is a bed entirely of her own making. If you are going to be a watch dog, you need to be able to bark, not whimper and wag your tail. An agent of the Office of the Banking Ombudsman should enter a bank to the tune of the Imperial March not Here Comes the Sun.

I have been to the Banking Ombudsman three times: 2014, 2016 and 2018…and each time been totally underwhelmed:

  • Where we provided a legal opinion that ANZ erred in not informed me of the additional lending, the Banking Ombudsman did not explore this further because ANZ disagreed.
  • Where we requested a review of my case through the chair of the board of the Banking Ombudsman, the QC appointed to that review was specifically constrained to only consider the process followed and NOT the issues raised.
  • Where we provided evidence of quite blatant obstruction and deception on the part of ANZ New Zealand, the Banking Ombudsman was silent.
  • ANZ has an obligation under the Code to ensure that any body borrowing money from it is reasonably capable of repaying the loaned amount plus agreed interest. ANZ did not do that with this lending. The Banking Ombudsman would not comment.. 
  • The Banking Ombudsman attempted to deflect complaints to government agencies like the FMA, Privacy Commission, Commerce Commission etc. Each agency has responded that it considers the Office of the Banking Ombudsman to be the most appropriate agency for investigation and resolution of these and similar issues. While I tend to agree with the Banking Ombudsman’s logic on this, the Government, at this time, does not.

ANZ has desperately clung to the Banking Ombudsman’s findings as its sole defence against my challenges. Sometimes we wonder if anyone at ANZ has actually read those findings in the context of the actual complaints and whether its “the Banking Ombudsman says” mantra has always worked in the past to keep the light at bay…

Sooner or later, the Banking Ombudsman will need to review her position on these issues. They will not bear up under the light of increasingly public scrutiny…

Damned if you do, damned if you don’t…maybe the Banking Ombudsman is in a limbo similar to my own at the moment…

Time to do the right thing…

Dear ANZ, are you listening…?

 

ANZ New Zealand is being offered every opportunity to do the right thing…my lawyer has been busy over the last couple of days…sent to ANZ this morning via Bell BGully…

ANZ is now so shy of adverse media it will seek a less profitable outcome to try to keep its dirty laundry under cover…

From this…

Mr O’Neill’s home, situated at 3803 State Highway 4, Raurimu (“the property”) was scheduled to be auctioned by ANZ New Zealand (“ANZ”) at 11.00am on 8 November. My client instructs that there was considerable legitimate interest in this auction.

However, our client instructs that the ANZ cancelled the auction at the last minute when prospective buyers were already assembling at the auction location. The ANZ has given no reason to my client for this last minute action; and I understand that this may have been a reactive response to questions asked by the media with regards to the sale.

The ANZ has not communicated with Mr O’Neill at all. On 15 November 2018, an agent from Harcourts advised him that because he “had a right to know’ the ANZ had instructed that the property was to be sold by tender. Tenders are due by 4.00pm on 30 November 2018.

My client instructs that two days later, noting the short duration of the tender, he was concerned that an online listing had not been posted immediately and raised this concern with Harcourts head office. A listing appeared early the following week; however, signage on the property was not erected until later that week. There has been no contact with Mr O’Neill to arrange viewing opportunities and/or further open homes for interested purchasers. Mr O’Neill instructs that he has cooperated fully with previous open homes.

…to this…really…?

Mr O‘Neill believes, and certainly there appears to be no evidence to refute this belief, that the ANZ did not intend for him to learn of the tender until it had closed.

The notice period for this change in tactic is of concern, as my client does not consider that this approach will result in an appropriate response being obtained from the market. Also, as mortgagor he may suffer considerable loss because of the approach taken by the ANZ, particularly, at this time of year; and after having cancelled the auction process
that promised the best result for all parties concerned.

It is of concern that there appears to be an ongoing failure by the ANZ to communicate with Mr O’Neill either directly or through me. My client is of the view that the switch from an auction to a tender process by the ANZ is potentially a less effective form of marketing. It would also appear that as the ANZ stands to recover less of the debt via tender process, it could be viewed that this action is solely intended to protect the ANZ from unwanted media interest. If that is the case, then the approach could be considered reprehensible and inconsistent with the obligation the ANZ has under the Code of Banking Practice to “act fairy, reasonably, and in good faith, in a consistent and ethical way’.

My client views the situation for ANZ as being entirely of its own making, which includes its reckless lending; and in its conduct since he first raised his concerns five years ago. If the growing media and political interest is uncomfortable for ANZ, then this is unfortunate; however, Mr O’Neill should not be disadvantaged as a result. I would also draw your attention to the effects upon Mr O’Neill’s physical and psychological well-being, which is resultant from the conduct of the ANZ towards him.

Without conceding our client’s position in this matter, our client considers that an appropriate response is an 8 week campaign for a tender after the Christmas period. Alternatively, our client’s offer to facilitate a resolution remains open.

I await your immediate response.

Brighter days…

An open letter to New Zealand Members of Parliament: Banking conduct in New Zealand

“We’re going to live in the truck?” Cool..!”

Hello

On 5 November the Financial Markets Authority and the Reserve Bank released their joint report into bank conduct and culture in New Zealand On 15 November they released another report into bank incentive structures. Both reports are highly critical of banks’ conduct in New Zealand, find most if not all wanting in terms of their culture and conduct; measures in place to mitigate poor conduct; and the responsibilities of senior bank officers and of boards.

While everyone seems to accept the findings of the reports, no one yet seems to want to ask the questions around making it right. ANZ New Zealand posted a profit of $1.99 billion in the last twelve months, that’s around $5.4 million dollars a day – profit! Should ANZ be required to allocate a proportion of its profits to making it right for the New Zealander who, to be blunt about it,have been screwed by the greed of ANZ and other banks? ANZ was quite happy to incentivise and pressure its staff into making sales that should never have proceeded and now it needs to make this right.

In 2004, I guaranteed my partner’s company for a house for our daughter when we moved away. That property was sold in 2005 and I thought nothing more of it. At the same time my partner was recovering from a serious head injury. When she was working her income was less than $50k a year and income from her company was limited, less than $10k a year. Still ANZ, from 2005-2009, extended credit to her that, by the time I found out about it at the end of 2013, had accrued to $408k. I don’t not believe that she is responsible for her actions in this period. If I did, then I would be taking the appropriate actions.

When I challenged ANZ over this, it said that it had no authority to discuss this with me. That was not true: the loan documents include a specific clause enabling disclosure to guarantors and the Privacy Commissioner also ruled in 2012 that this sort of information can be considered personal information for the guarantor.

ANZ said that the Credit Contracts and Consumer Finance Act (CCCFA) prevented it disclosing this information.Again, this is untrue: this Act only applies to personal lending and does not mention company lending at all.

To support its position that guarantees are treated differently that security, ANZ then made up information that it attributed to the Code of Banking Practice. Even if that Code did say that, ANZ’s guarantee and loan documents clearly define security as including guarantees.

Under the Code of Banking Practice, ANZ has an obligation to only extend credit if it is satisfied that the person borrowing the money can reasonably pay it back. Under the same Code it also has an obligation to tell people who have offered guarantees and other security of new or additional lending against that guarantee or other forms of security.  

The Code also includes a general obligation for banks to act fairly, reasonably, ethically and consistently. While we might agree that they are consistent in their conduct towards customers, the recent reports from the FMA and Reserve Bank find that ANZ et al fall short in acting fairly, ethically and reasonably. Who will hold them to account for their actions?

The reports find the regulatory frameworks in New Zealand for banking are weak. In part this may be due to gaps in legislation and culture of ‘not our problem’ – have a look and see how many  government agencies with a regulatory output have more content on their websites about what they don’t do versus what they actually do. From my experience with these agencies, this is largely due to inadequate leadership and an unwillingness to get into the fight. Nowhere is this more apparent that within the Office of the Banking Ombudsman. Although not part of Government – something I hope you will consider changing – this office should be the primary watchdog to safeguard ordinary New Zealanders against predatory banks like ANZ.

In November 2016, I submitted a detail complaint (attached) with supporting documentation to Office of the Banking Ombudsman which initially rejected it out of hand. After three months, it produced a single page response (attached) that did not address any of the issues raised. Acting on advice from the Office of the (real) Ombudsman this year, I submitted a complaint to the chair of the Board of the Banking Ombudsman. Although she did appoint a QC to review my case, he was specifically limited to only review the process applied by the Banking Ombudsman and not the actual issues raised.

ANZ was scheduled to forcibly auction my home on 8 November.I cooperated fully with the real estate agent as, if the sale proceeded, it was in my best interests as much as ANZ’s for the auction to achieve the best possible result. That auction was cancelled an hour before it was due to proceed. I believe that ANZ did this to prevent 1 News screening a story on the auction that night. ANZ did not communicate with me at any time to advice of the cancellation, the reasons for the cancellation or what would be happening next. A week later, the real estate agent called me in tears after she had found out my home was instead to be sold by auction. I don’t believe that I was meant to know about this til it was a done deal. That tender closes 4PM Friday 30 November.

There is probably not much that can be done to deter ANZ from its course this time. Like most bullies, the only things that put it off are a good hard punch to the nose, or being publicly embarrassed. To that end, if you would like to help, please do not go off and punch a banker. Instead, you might wish to ask the Banking Ombudsman or ANZ if they would like to offer some comment on the issues raised in the attached complaint (sorry, it is a bit chunky as there are a lot of issues) or ANZ’s conduct since I first challenged it in 2013 (yes, five years ago) and over its conduct of the tender.

Contacts for the Banking Ombudsman are Nicola Sladden nicola.sladden@bankomb.org.nzor for the chair of the Board, Miriam Dean miriam.dean@barrists.co.nz. Unfortunately I do not have any direct contacts with ANZ other than to direct you towards its totally inappropriately named Customer Financial Well-being Unit.

Longer term, please consider how best predatory corporates like ANZ New Zealand can be held accountable and required to make good, as best they can, the damage their greed has done to so many ordinary New Zealanders.

My suggestions are that we

  • bring the Office of the Banking Ombudsman in as an arm of Government; 
  • ensure that other regulatory agencies like the FMA and Commerce Commission are both empowered and energised to pursue errant corporates; and, most of all,
  • establish a Royal Commission to peel off the scab of banking in New Zealand. I do not believe for one second that the Tasman Sea is a barrier adequate to protect us from the behaviours now being exposed by the Australian Banking Royal Commission.  

Thank you

Simon O’Neill

(yes, the rescue helicopter guy)

In Raurimu (for now)

When the sun shines again…