FEDERAL COURT OF AUSTRALIA
Evans v Davantage Group Pty Ltd (No 3) [2021] FCA 70
File number: VID 982 of 2018 Judgment of: BEACH J Date of judgment: 5 February 2021 Catchwords: REPRESENTATIVE PROCEEDINGS – approval of settlement – common fund order – returns to group members – deduction for “after the event” insurance premium – potential scope of s 33V(2) of the Federal Court of Australia Act 1976 (Cth) – excess returns – cy‑prés doctrine – settlement distribution scheme – settlement approved Legislation: Federal Court of Australia Act 1976 (Cth) ss 33V, 33X, 33Z, 33ZB, 33ZF Cases cited: Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 3) [2020] FCA 1885
Blairgowrie Trading Ltd v Allco Finance Group Ltd (No 3) (2017) 343 ALR 476
BMW Australia Ltd v Brewster (2019) 374 ALR 627
Evans v Davantage Group Pty Ltd [2019] FCA 884
Evans v Davantage Group Pty Ltd (No 2) [2020] FCA 473
Kuterba v Sirtex Medical Limited (No 3) [2019] FCA 1374
Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd (2018) 358 ALR 382
Newstart 123 Pty Ltd v Billabong International Ltd (2016) 343 ALR 662
Perera v GetSwift Limited (2018) 263 FCR 92
Simpson v Thorn Australia Pty Ltd (t/a Radio Rentals) and Others (No 5) (2019) 141 ACSR 424
Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459
Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 130 Date of hearing: 1 February 2021 Counsel for the Applicant: Mr BF Quinn QC with Mr D Fahey Solicitor for the Applicant: Baker & McKenzie Counsel for the Respondent: Dr CO Parkinson Solicitor for the Respondent: Herbert Smith Freehills Counsel for the Intervener: Mr LW Armstrong QC with Mr M Guo Solicitor for the Intervener: Aptum Legal ORDERS
VID 982 of 2018 BETWEEN: BRETT WILLIAM EVANS
Applicant
AND: DAVANTAGE GROUP PTY LTD (ACN 161 967 166)
Respondent
ORDER MADE BY:
BEACH J
DATE OF ORDER:
5 FEBRUARY 2021
THE COURT ORDERS THAT:
1.Subject to order 2, the settlement of the proceeding be approved under s 33V of the Federal Court of Australia Act 1976 (Cth) subject to any necessary modifications of the settlement distribution scheme (SDS).
2.Within 7 days of these orders, the applicant submit draft orders to accord with these reasons:
(a)reflecting necessary modifications to the SDS; and
(b)more generally dealing with the implementation of the settlement.
3.Liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BEACH J:
The application before me is to approve a settlement of this group proceeding under s 33V of the Federal Court of Australia Act 1976 (Cth).
This proceeding was commenced by the applicant on his own behalf and on behalf of other natural persons who between 1 July 2013 and 28 May 2015 in respect of their purchases of motor vehicles were provided by the respondent (Davantage) with a…
Keep reading for free
Create a free CaseChat account to read Evans v Davantage Group Pty Ltd (No 3) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2021] FCA 70
- Decision Date
CaseChat Overview and Summary
The primary legal issues that the court had to address included the appropriateness of a common fund order, the method of distributing returns to group members, and the legality of deducting an "after the event" insurance premium from the settlement fund. Furthermore, the court considered the potential scope of section 33V(2) of the Federal Court of Australia Act 1976 (Cth) in relation to excess returns and the application of the cy-prés doctrine in the settlement distribution scheme.
The court found that the settlement was generally fair and reasonable but required modifications to the settlement distribution scheme. The deduction of the "after the event" insurance premium was permissible as it was necessary to cover potential future liabilities. The court also determined that section 33V(2) could be interpreted to allow for the distribution of excess returns to group members. Finally, the court applied the cy-prés doctrine to ensure that any surplus funds would be appropriately allocated. Ultimately, the settlement was approved with the specified modifications to the distribution scheme.
In conclusion, the court approved the settlement with certain modifications to the settlement distribution scheme, ensuring that group members received their rightful returns and that any excess funds were appropriately allocated. The court also clarified the legal framework for handling "after the event" insurance premiums and the distribution of excess returns in representative proceedings.
Orders
Orders of the court
1. Subject to order 2, the settlement of the proceeding be approved under s 33V of the Federal Court of Australia Act 1976 (Cth) subject to any necessary modifications of the settlement distribution scheme (SDS).
2. Within 7 days of these orders, the applicant submit draft orders to accord with these reasons:
(a) reflecting necessary modifications to the SDS; and
(b) more generally dealing with the implementation of the settlement.
3. 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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.