Evans v Davantage Group Pty Ltd (No 4)

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FEDERAL COURT OF AUSTRALIA

Evans v Davantage Group Pty Ltd (No 4) [2021] FCA 1634

File number(s): VID 982 of 2018
Judgment of: BEACH J
Date of judgment: 22 December 2021
Catchwords: REPRESENTATIVE PROCEEDINGS – undistributed remainder of settlement sum – competing claims to the residual – application of s 33V(2) of the Federal Court of Australia Act 1976 (Cth) – relevance of equitable principles – relevance and scope of cy-près doctrine – power to impose a cy-près analogue remedy – potential windfall gain to group members – entitlement of funder to a top up commission – claim by respondent to the residual – whether modification to settlement deed or settlement distribution scheme required – relevance of US and Canadian legal frameworks concerning the distribution of residuals in class action settlements – orders made
Legislation: Federal Court of Australia Act 1976 (Cth) ss 33V, 33ZA, 33ZF
Cases cited:

BMW Australia Ltd v Brewster (2019) 269 CLR 574

Evans v Davantage Group Pty Ltd [2019] FCA 884

Evans v Davantage Group Pty Ltd (No.2) [2020] FCA 473

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

Kuterba v Sirtex Medical Ltd (No 3) [2019] FCA 1374

Simpson v Thorn Australia Pty Ltd t/as Radio Rentals (No 5) (2019) 141 ACSR 424

Division: General Division
Registry: Victoria
National Practice Area: Commercial and Corporations
Sub-area: Corporations and Corporate Insolvency
Number of paragraphs: 119
Date of hearing: 29 November 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 SC
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:

22 DECEMBER 2021

THE COURT ORDERS THAT:

1.After the payment of the applicant’s legal costs and the legal costs of Vannin Operations Limited (the funder) referred to in order 2, any remaining surplus of the settlement fund be distributed:

(a)as to 56.5%, to the Consumer Action Law Centre; and

(b)as to 43.5%, to the funder.

2.To the extent not already provided in or deducted under prior orders, the costs of the applicant and the funder of and incidental to the present application be paid out of the settlement fund currently administered by FTI Consulting (Australia) Pty Ltd.

3.There be no order as to costs in favour of or against the respondent.

4.There be a stay on the operation of orders 1 and 2 for a period of 28 days.

5.There be liberty to apply concerning the recipient referred to in order 1(a) and concerning any further orders consequential upon the settlement of the proceeding.

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


REASONS FOR JUDGMENT

BEACH J:

  1. In a context that resonates with the…

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Details
Case
[2021] FCA 1634
Decision Date

CaseChat Overview and Summary

Evans v Davantage Group Pty Ltd (No 4) involved a dispute over the undistributed remainder of a settlement sum in a class action proceeding. The Consumer Action Law Centre sought to distribute the residual sum, while Davantage Group Pty Ltd claimed a portion of it. The court was tasked with determining the legal principles to apply in allocating the residual sum, including whether equitable principles and the cy-près doctrine were relevant, and whether a modification to the settlement deed or distribution scheme was necessary.

The court considered whether the funder, Vannin Operations Limited, was entitled to a top-up commission from the residual sum. The court found that the residual sum arose due to Vannin taking a reduced commission, and thus, it was just to allocate 43.5% of the sum to Vannin. The court also examined the relevance of US and Canadian legal frameworks concerning the distribution of residuals in class action settlements. The court concluded that equitable principles and the cy-près doctrine were relevant and that a cy-près analogue remedy could be applied.

The court ordered that the remaining surplus of the settlement fund be distributed 56.5% to the Consumer Action Law Centre and 43.5% to the funder, with a 28-day stay on the operation of the orders to allow for any challenges. The court also ordered that the costs of the applicant and the funder be paid from the settlement fund, with no order as to costs in favour of or against the respondent. The court granted liberty to apply concerning the recipient and any further orders consequential upon the settlement of the proceeding.

Orders

Orders of the court

1. After the payment of the applicant’s legal costs and the legal costs of Vannin Operations Limited (the funder) referred to in order 2, any remaining surplus of the settlement fund be distributed:

(a) as to 56.5%, to the Consumer Action Law Centre; and

(b) as to 43.5%, to the funder.

2. To the extent not already provided in or deducted under prior orders, the costs of the applicant and the funder of and incidental to the present application be paid out of the settlement fund currently administered by FTI Consulting (Australia) Pty Ltd.

3. There be no order as to costs in favour of or against the respondent.

4. There be a stay on the operation of orders 1 and 2 for a period of 28 days.

5. There be liberty to apply concerning the recipient referred to in order 1(a) and concerning any further orders consequential upon the settlement of the proceeding.

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

In summary, in circumstances where the residual sum owes its existence to Vannin taking a reduced commission, the just course in all the circumstances is to allocate the suggested 43.5% of that sum to it.Conclusion I will make orders to accord with these reasons, but stay the operative allocation orders for 28 days to enable any disappointed claimant to any part of the residual sum to challenge my ruling if that is their wish.

Ratio Decidendi

Legal Principle Established

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