Boase v Sullivan Commercial Pty Ltd trading as McGees Property (No 3)

Case [2013] FCA 15

FEDERAL COURT OF AUSTRALIA

Boase v Sullivan Commercial Pty Ltd trading as McGees Property (No 3)

[2013] FCA 15

Citation: Boase v Sullivan Commercial Pty Ltd trading as McGees Property (No 3) [2013] FCA 15
Parties: TIMOTHY BOASE & JENNY LEE BOASE ATF THE BOASE FAMILY TRUST WITH TRUSTEE TIMOTHY BOASE AS THE REPRESENTATIVE PARTY, SUSAN ELIZABETH BOASE, PAUL ANTHONY BOASE, CHRISTOPHER WILLIAM BOASE, SAMUEL BOASE, ASHLEY JOHN WALLIN, ANTHONY DAVID WALKER & OLIVIA JAYE WALKER, LUCAS HOLT, CHRISTINE FORLONGE & GRAHAM FORLONGE, JANE ELIZABETH GLASS, ROGER LYNTON KERLEY & JENNIFER ANNE ALFORD, SAIL INVESTMENTS ATF THE STOCKS FAMILY TRUST, STEVEN NIKOLA PECNIK & JOSEPHINE MELANIE PECNIK, IB LEWIS CAMERON, SUSAN ROOSENBOOM, JULIE RETA MINTER, RON REDDINGIUS & JULIE ANNE REDDINGIUS, DAVID H J PAYNE & MELISSA A PAYNE, GARRY CHARLES HAWKES ATF THE HAWKES FAMILY TRUST, GOLFBLITZ PTY LTD ATF STEPHEN CLARKE TRADING TRUST, BRETT DOUGLAS STUBBS-MILLS, CHRISTOPHER MARSHALL ALLAN & MICHELE MARGARET ALLAN ATF THE ALLAN SUPER FUND, RAYMOND JOHN GIBLETT & JANET DIANNE GIBLETT, HOVEA INVESTMENTS PTY LTD ATF THE MOCK FAMILY TRUST, PHILLIPS PROPERTY ATF THE PHILLIPS FAMILY TRUST v SULLIVAN COMMERCIAL PTY LTD T/A MCGEES PROPERTY and WAYNE SRHOY
File number: WAD 240 of 2010
Judge: MCKERRACHER J
Date of judgment: 16 January 2013
Catchwords: PRACTICE AND PROCEDURE – representative proceeding – application for Court approval of proposed settlement – whether terms of proposed settlement fair and reasonable
Legislation: Federal Court of Australia Act 1976 (Cth) s 33V
Cases cited: Boase v Sullivan Commercial Pty Ltd trading as McGees Property [2010] FCA 1441
Boase v Sullivan Commercial Pty Ltd trading as McGees Property (No 2)[2011] FCA 510
Date of hearing: 13 December 2012
Place: Perth
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 12
Counsel for the Applicants/Group Members: T Boase represented the Applicants/Group Members
Counsel for the Respondents: SD Hubbard
Solicitor for the Respondents: DLA Piper Australia

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 240 of 2010
BETWEEN:

TIMOTHY BOASE & JENNY LEE BOASE ATF THE BOASE FAMILY TRUST WITH TRUSTEE TIMOTHY BOASE AS THE REPRESENTATIVE PARTY
Applicants/First Group Member

SUSAN ELIZABETH BOASE
Second Group Member

PAUL ANTHONY BOASE
Third Group Member

CHRISTOPHER WILLIAM BOASE
Fourth Group Member

SAMUEL BOASE
Fifth Group Member

ASHLEY JOHN WALLIN
Sixth Group Member

ANTHONY DAVID WALKER & OLIVIA JAYE WALKER Seventh Group Member

LUCAS HOLT, CHRISTINE FORLONGE & GRAHAM FORLONGE
Eighth Group Member

JANE ELIZABETH GLASS
Ninth Group Member

ROGER LYNTON KERLEY & JENNIFER ANNE ALFORD
Tenth Group Member

SAIL INVESTMENTS ATF THE STOCKS FAMILY TRUST
Eleventh Group Member

STEVEN NIKOLA PECNIK & JOSEPHINE MELANIE PECNIK
Twelfth Group Member

IB LEWIS CAMERON
Thirteenth Group Member

SUSAN ROOSENBOOM
Fourteenth Group Member
JULIE RETA MINTER
Fifteenth Group Member

RON REDDINGIUS & JULIE ANNE REDDINGIUS
Sixteenth Group Member

DAVID H J PAYNE & MELISSA A PAYNE
Seventeenth Group Member

GARRY CHARLES HAWKES ATF THE HAWKES FAMILY TRUST
Eighteenth Group Member

GOLFBLITZ PTY LTD ATF STEPHEN CLARKE TRADING TRUST
Nineteenth Group Member

BRETT DOUGLAS STUBBS-MILLS

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AGLC
Boase v Sullivan Commercial Pty Ltd trading as McGees Property (No 3) [2013] FCA 15
Case
[2013] FCA 15
Decision Date

CaseChat Overview and Summary

The case of Boase v Sullivan Commercial Pty Ltd trading as McGees Property (No 3) involved Timothy Boase, representing a group of property purchasers, seeking approval from the court for a proposed settlement with Sullivan Commercial Pty Ltd (the respondent). The dispute arose from the respondents' alleged failure to disclose material facts regarding a property development, which the applicants claimed was a breach of fiduciary duty and misrepresentation. The Federal Court of Australia was tasked with determining whether the terms of the proposed settlement were fair and reasonable, in accordance with section 33V of the Federal Court of Australia Act 1976 (Cth).

The court needed to decide if the proposed settlement terms, detailed in the affidavit of Timothy Boase and outlined in the annexure of the document, were just and equitable. This required an assessment of the benefits and detriments to the parties involved, and whether the settlement was in the best interests of the group members. The court also had to consider whether the settlement terms complied with the legal requirements and whether there was sufficient evidence to support the claims made by the applicants.

In delivering its judgment, the court found that the proposed settlement terms were fair and reasonable. The settlement was deemed to be in the best interests of the group members, as it provided a resolution to the dispute without the need for further litigation, which would have been costly and time-consuming. The court was satisfied that the terms were just and equitable, and approved the settlement in accordance with section 33V of the FCA Act. The court also ordered that the affidavit and its exhibits be sealed and kept confidential, and that the settlement sum be paid into court before being distributed to the group members.

The court further ordered that the settlement sum be paid into court by a specified date, with subsequent payment to the group members upon written direction. The proceeding was to be dismissed within 14 days of the payment, and all previous orders and costs were to be vacated. The court retained the liberty to grant further orders as necessary.

Orders

Orders of the court

1. Subject to payment into and out of Court as set out in orders 4 and 5, the “Terms of Settlement” between the Group Members and the Respondents set out in Annexure “TB1” on page 12 of the affidavit of Timothy Boase sworn on 6 December 2012 are approved pursuant to section 33V of the Federal Court of Australia Act 1976 (Cth) (the FCA Act).

2. Pursuant to section 50 of the FCA Act, the affidavit of Timothy Boase sworn on 6 December 2012 in support of his settlement approval application (including all exhibits) be sealed on the Court file in an envelope marked “Not to be opened except by leave of the Court or a Judge” and not be published to any person without further order of the Court.

3. The parties and their legal representatives do keep the terms of settlement confidential.

4. The First Respondent pay the settlement sum as set out in the “Terms of Settlement” into Court on or before 12 noon Monday 24 December 2012.

5. Upon written direction by the Representative Party to District Registrar Jan, the settlement sum be paid out of Court to the Group Members in equal shares in accordance with the number of lots acquired in the development.

6. Within 14 days of payment of the settlement sum out of Court to the Group Members, the proceeding be dismissed.

7. All previous orders made to date in the proceeding, including costs orders and future listings, be vacated.

8. There be no order as to costs.

9. All parties have liberty to apply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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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