CIVIL PROCEDURE – Settlement approval – Settlement of two proceedings – Group proceeding and separate proceeding brought by special purpose receivers – Group proceeding funded by litigation funder – Settlement sum to be paid in settlement of both proceedings – Whether settlement sum fair and reasonable – Proposed distributions from settlement sum for litigation funder’s commission and legal costs – Where overlap between two proceedings – Whether judge had adequate regard to contribution of special purpose receivers’ proceeding in approving commission – Appeal allowed.
CIVIL PROCEDURE – Settlement approval – Parties to settlement contractually bound to support litigation funder’s applications for commission and legal costs – Whether judge erred in ordering confidentiality over expert costs report, affidavit evidence and legal advices and submissions – Whether judge erred in failing to appoint contradictor.
CIVIL PROCEDURE – Settlement approval – Where plaintiffs did not join parent company of professional trustee company defendant.
CIVIL PROCEDURE – Settlement approval – Settlement conditional on making of ‘Approval Orders’ – Whether ‘Approval Orders’ includes litigation funder’s applications for commission and legal costs – Whether open to Court to approve settlement but not approve proposed distributions for commission and legal costs – Supreme Court Act 1986 ss 33V, 33ZF.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr C H Withers with Mr C A Botsman
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For the First Respondent
Mr N J O’Bryan SC with Mr M W L Symons
Portfolio Law
For the Second, Sixteenth and Seventeenth Respondents
Mr J A Redwood with Ms P M Bindon
Maddocks
For the Third Respondent
Mr I G Waller QC with Mr P G Liondas and Ms F Shand
The parties............................................................................................................................................ 3
The proceedings.................................................................................................................................... 5
Funding of the group proceeding....................................................................................................... 8
The partial settlement......................................................................................................................... 9
The settlement.................................................................................................................................... 11
The approval applications............................................................................................................... 17
The evidence on the approval applications................................................................................... 23
The settlement approval hearing..................................................................................................... 31
The reasons of the judge................................................................................................................... 32
The orders........................................................................................................................................... 39
The application for leave to appeal................................................................................................ 40
The application for leave to amend................................................................................................ 40
The application for leave to adduce fresh evidence...................................................................... 47
Mr Bolitho’s objection to competency........................................................................................... 49
The applicable principles.................................................................................................................. 53
The grounds of appeal....................................................................................................................... 63
Grounds 1, 2(b) and 2(c): The confidentiality regime.................................................................... 64
Grounds 2(a) and 5: The distribution of the settlement sum....................................................... 74
Ground 2(d): The decision not to appoint a contradictor............................................................ 85
Grounds 3 and 4: The…
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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Details
AGLC
Botsman v Bolitho [2018] VSCA 278
Case
[2018] VSCA 278
Decision Date
CaseChat Overview and Summary
The case of Botsman v Bolitho (No 1) involves two proceedings brought by special purpose receivers against Bolitho, including a group proceeding funded by a litigation funder. The primary dispute is whether the settlement terms approved by the court were fair and reasonable, particularly in relation to the proposed distributions for the litigation funder’s commission and legal costs. The Supreme Court of Victoria was tasked with deciding these issues.
The legal issues before the court were multifaceted. Firstly, the court had to determine if the judge had adequately considered the contribution of the special purpose receivers' proceeding when approving the litigation funder's commission. Secondly, the court assessed whether the judge erred in ordering confidentiality over the expert costs report, affidavit evidence, and legal advices and submissions. Additionally, the court examined whether the judge made an error by not appointing a contradictor. Finally, the court considered whether the plaintiffs’ failure to join the parent company of the professional trustee company defendant impacted the settlement’s validity.
In its reasoning, the court found that the judge did not adequately regard the contribution of the special purpose receivers' proceeding in approving the commission. Furthermore, the court held that the judge erred in ordering confidentiality over certain documents and in not appointing a contradictor. The court also ruled that the plaintiffs' omission to join the parent company of the professional trustee company defendant did not affect the settlement's validity. Consequently, the appeal was allowed.
The final orders of the court included the allowance of the appeal, with the settlement terms subject to re-evaluation under the guidelines provided. The court emphasized the importance of ensuring that all contributions to the settlement are fairly considered and that proper procedural safeguards, including the appointment of a contradictor, are in place.