Augusta Pool 1 UK Ltd v Williamson [2023] NSWCA 93
Hearing dates:
14 March 2023
Date of orders:
12 May 2023
Decision date:
12 May 2023
Before:
Bell CJ at [1]; Ward P at [11]; Adamson JA at [168]
Decision:
Appeal dismissed with costs.
Catchwords:
CIVIL PROCEDURE — Representative proceedings — Settlement or discontinuance — Approval of settlement with limitation on deduction out of settlement sum for litigation funder’s commission and “after the event” (ATE) insurance premium to 25% of gross settlement sum — Whether primary judge impermissibly imposed onus on the litigation funder to adduce expert evidence – Whether primary judge took into account irrelevant factors in consideration of kinds of evidence adduced in cases in which common fund orders had been sought in the context of a s 173 application – Whether primary judge erred in finding that there was insufficient disclosure made to the group members at the relevant time and in according insufficient weight to lack of objection by group members to the proposed deductions and the competitive process by which litigation funding was arranged
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Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Augusta Pool 1 UK Ltd v Williamson [2023] NSWCA 93
Case
[2023] NSWCA 93
Decision Date
CaseChat Overview and Summary
Augusta Pool 1 UK Ltd (the applicant) appealed to the Court of Appeal of New South Wales against orders made by the primary judge approving a settlement in a representative proceeding. The dispute concerned the approval of a settlement that included a limitation on deductions from the settlement sum for the litigation funder’s commission and an "after the event" insurance premium, capping these deductions at 25% of the gross settlement sum.
The Court of Appeal was required to determine whether the primary judge had erred in imposing an onus on the litigation funder to adduce expert evidence regarding the reasonableness of the proposed deductions. Further, the court had to consider whether the primary judge had taken into account irrelevant factors when assessing the evidence presented in support of the settlement, particularly in the context of applications for common fund orders. The court also had to determine if the primary judge had made an error in finding that there was insufficient disclosure to group members at the time of the settlement, and whether insufficient weight had been given to the lack of objection from group members and the competitive process by which the litigation funding was arranged.
The Court of Appeal dismissed the appeal. The court reasoned that the primary judge had not impermissibly imposed an onus on the litigation funder, nor had they taken irrelevant factors into account. The primary judge's findings regarding insufficient disclosure and the weight to be accorded to the lack of objection and the competitive tendering process were also upheld. The court found no error in the primary judge's approach to approving the settlement with the specified limitation on deductions.