Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 3)

In the Federal Court of Australia, the case of Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 3) involves an application for the approval of a settlement of an open class consumer class action. The applicant, Asirifi-Otchere, alleged that the respondents sold "add on" insurance products through dealers, which had no material value, and claimed that the respondents engaged in misleading and deceptive and unconscionable conduct. The applicant sought restitution as the products were purchased by mistake. The settlement reached was for an amount of $138 million. A litigation funder intervened in the hearing, and an amicus curiae was appointed in the absence of a contradictor. The applicant and the litigation funder sought approval of the settlement under section 33V(1) and (2) of the Federal Court of Australia Act 1976 (Cth) and/or in equity. The court had to consider whether the settlement was fair, reasonable and in the interests of the group members and whether a common fund order (CFO) at a rate of 25% of the gross settlement sum was appropriate. The court also had to consider other areas of law where reasonable remuneration was fixed by the court.

The court found that the settlement was fair, reasonable and in the interests of the group members and that a CFO at a rate of 25% of the gross settlement sum was appropriate. The court found that the amount of remuneration sought by the litigation funder (25% of the gross settlement sum) was towards the middle of the range of rates offered or accepted by funders for class actions in Australia. The court also found that the commission rate sought was within the range awarded in similar proceedings. The court granted the CFO and rejected the litigation funder's request for payment of costs associated with an "after the event" insurance policy. The court considered the equitable basis for granting CFOs at settlement and found that the settlement was appropriate.

The court approved the terms of the settlement and the Settlement Distribution Scheme. The court also approved the release of the Released Parties from each Claim made by or on behalf of the applicant or any Bound Group Member in this proceeding. The court deemed certain group members as having opted out and appointed George Georges and John Lindholm of KPMG as Administrators of the Settlement Distribution Scheme. The court dismissed the proceeding with effect upon completion of administration of the Settlement Distribution Scheme. The court also ordered that the $30,000 security paid into the Federal Court Investment Account be returned to the Funder and that certain documents remain confidential until 21 December 2025. The court vacated order 13(g) of the orders made on 5 November 2020 and ordered that Bannister Law will bear 25% of the fees of Ms Liz Harris as Referee in the amount of $10,999.99 and that the balance of those costs shall become part of the Applicant's Legal Costs, as defined in the Settlement Distribution Scheme.