Applications by Australia and New Zealand Banking Group Limited and Suncorp Group Limited [2024] ACompT 1

AUSTRALIAN COMPETITION TRIBUNAL

Applications by Australia and New Zealand Banking Group Limited and Suncorp Group Limited [2024] ACompT 1 Review from: Applications by Australia and New Zealand Banking Group Limited and Suncorp Group Limited for review of Australian Competition and Consumer Commission Merger Authorisation Determination MA1000023

File number(s): ACT 1 of 2023

Determination of: Justice Halley (Deputy President) Dr J Walker (Member) Ms D Eilert (Member)

Date of determination: 20 February 2024

Catchwords: COMPETITION – applications under s 101 of the Competition and Consumer Act 2010 (Cth) (CCA) for review of merger authorisation determination made by the Australian Competition and Consumer Commission (ACCC) – share sale and purchase agreement (share purchase agreement) entered into between Australia and New Zealand Banking Group Limited (ANZ) and Suncorp Group Limited (SGL) (together, applicants) which provided for purchase of Suncorp Bank by ANZ (Proposed Acquisition) – where ACCC refused authorisation of the Proposed Acquisition – where authorisation application opposed by Bendigo and Adelaide Bank Limited (Bendigo) – whether Tribunal satisfied that Proposed Acquisition would not be likely to have the effect of substantially lessening competition in the national home loans market and local or regional markets in Queensland for agribusiness customers and small to medium enterprises under s 90(7)(a) of CCA – where necessary to identify commercially realistic counterfactuals – where Tribunal considered two counterfactuals referred to as No Sale counterfactual where SGL retains ownership of Suncorp Bank and Bendigo Merger counterfactual where Bendigo acquires Suncorp Bank – where Tribunal satisfied of test under s 90(7)(a) of CCA – where test under s 90(7)(b) only arises for determination if Tribunal not satisfied that Proposed Acquisition satisfies s 90(7)(a) – where Tribunal satisfied, in any case, that Proposed Acquisition would result, or be likely to result in a benefit to the public and benefit would outweigh detriment to public that would result, or be likely to result, from the Proposed Acquisition – determination of the ACCC set aside – ANZ granted authorisation pursuant to s 88(1) and s 102(1) of the CCA to acquire Suncorp Bank pursuant to share purchase agreement STATUTORY INTERPRETATION – meaning and application of "future with and without test" under s 90(7)(a) of CCA – proper approach to evaluation of counterfactuals under s 90(7)(a) of CCA