Augusta Pool 1 UK Ltd v Williamson

Case [2023] NSWCA 93


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: 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

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 173

Contracts Review Act 1980 (NSW)

Design and Building Practitioners Act 2020 (NSW)

Federal Court Act 1976 (Cth), s 33ZF

Home Building Act 1989 (NSW)

Supreme Court Act 1970 (NSW), s 101

Supreme Court Act 1986 (Vic), s 33V(2)

Cases Cited:

Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 3) [2020] FCA 1885; (2020) 385 ALR 625

Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51; [2003] HCA 18

Australian Securities and Investments Commission v Richards [2013] FCAFC 89

Blairgowrie Trading Ltd v Allco Finance Group Ltd (mgrs and recs apptd) (in liq) (No 3) [2017] FCA 330

Bolitho v Banksia Securities Ltd (mgrs and recs apptd) (in liq) (No 18) [2021] VSC 666

Botsman v Bolitho (No 1) [2018] VSCA 278; (2018) 57 VR 68

Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; [1981] HCA 20

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631; [2020] FCAFC 122

Davaria Pty Ltd v 7-Eleven Stores Pty Ltd [2020] FCAFC 183; (2020) 281 FCR 501

Evans v Davantage Group Pty Ltd (No 3) [2021] FCA 70

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Hall v State of New South Wales [2014] NSWCA 154

Haselhurst v Toyota Motor Corporation Australia Ltd t/as Toyota Australia [2022] NSWSC 1076

House v The King (1936) 55 CLR 499; [1936] HCA 40

In the Marriage of Norbis (1986) 161 CLR 513; [1986] HCA 17

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114; [2020] FCAFC 119

Kuterba v Sirtex Medical Limited (No 3) [2019] FCA…

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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.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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