Findlay v DSHE Holdings Ltd; Mastoris v DSHE Holdings Ltd; Mastoris v Allianz Australia Insurance Ltd

[2021] NSWSC 249

Supreme Court

New South Wales

Medium Neutral Citation:

Findlay v DSHE Holdings Ltd; Mastoris v DSHE Holdings Ltd; Mastoris v Allianz Australia Insurance Ltd [2021] NSWSC 249

Hearing dates:

5 March 2021

Date of orders:

17 March 2021

Decision date:

17 March 2021

Jurisdiction:

Equity - Commercial List

Before:

Stevenson J

Decision:

Settlement approved on terms

Catchwords:

CIVIL PROCEDURE - representative proceedings – shareholder class actions – three proceedings travelling together settled in principle on day 55 of hearing – whether settlement should be approved – where settlement figure modest compared to amounts clamed – where four fifths of settlement figure to be

used to meet legal costs and settlement administration expenses – where prospects of success problematic – where ability of defendants meet judgment in doubt

Legislation Cited:

Australian Securities and Investments Commission Act 2001 (Cth)

Civil Procedure Act 2005 (NSW)

Corporations Act 2001 (Cth)

Court Suppression and Non-publication Orders Act 2010 (NSW)

Cases Cited:

Blairgowrie Trading Ltd v Allco Finance Group Ltd (Rec & Mgrs Apptd) (in Liq) (No 3) [2017] FCA 330; 118 ACSR 614

Caason Investments Pty Ltd v CAO (No 2) [2018] FCA 527

Camilleri v Trust Company (Nominees) Ltd [2015] FCA 1468

Court v Spotless Group Holdings Ltd [2020] FCA 1730

Farey v National Australia Bank Limited [2016] FCA 340

Haselhurst v Toyota Motor Corporation Australia Limited [2020] NSWCA 66

Kelly v Willmott Forests Ltd (in liq) (No 4) [2016] FCA 323; 112 ACSR 584

Liverpool City Council v McGraw-Hill Financial, Inc (now known as S&P Global Inc) [2018] FCA 1289

Money Max Int Pty Ltd v QBE Insurance Group Ltd [2018] FCA 1030; (2018) 358 ALR 382

Newstart 123 Pty Ltd v Billabong International Limited [2016] FCA 1194; (2016) 343 ALR 662

Smith v Australian Executor Trustees Ltd; Creighton v Australian Executor Trustees Ltd (No 4) [2018] NSWSC 1584

van Royden v DSHE Holdings Limited (Rec and Mgrs Apptd) (in Liq) [2018] NSWSC 1773

Williams v FAI Security Pty Ltd (No 4) [2000] FCA 1925

Category:

Consequential orders

Parties:

2017/294069
Haliburton Charles David Findlay (First Plaintiff)
Marian Jennifer Denny Findlay (Second Plaintiff)
DSHE Holdings Limited (Receivers & Managers Appointed) (In Liquidation) (First Defendant | First Cross Defendant on Fourth Cross Claim)
Nicholas Abboud (Second Defendant | Cross Claimant on Second Cross Claim | Second Cross Defendant on Fourth Cross Claim)
Michael Thomas Potts (Third Defendant | Cross Claimant on Third Cross Claim | Third Cross Defendant on Fourth Cross Claim)
David White and others (listed in Annexure A) t/as Deloitte Touche Tohmatsu (Fourth to Four Hundred & Fifty Seventh Defendants | Cross Claimants on Fourth Cross Claim | Cross Defendants on Second and Third Cross Claims)

2018/52431
Epaminondas Mastoris (First Plaintiff)
Lena Mastoris (Second Plaintiff)
DSHE Holdings Limited (Receivers & Managers Appointed) (In Liquidation) (First Defendant | First Cross Defendant on Fourth Cross Claim)
Nicholas Abboud (Second Defendant | Cross Claimant on Second Cross Claim | Second Cross Defendant on Fourth Cross Claim)
Michael Thomas Potts (Third Defendant | Cross Claimant on Third Cross Claim | Third Cross Defendant on Fourth Cross Claim)
David White and others (listed in Annexure A) t/as Deloitte Touche Tohmatsu (Fourth to Four Hundred & Fifty Seventh Defendants | Cross Claimants on Fourth Cross Claim | Cross Defendants on Second and Third Cross Claims)

2019/209326
Epaminondas Mastoris (First Plaintiff)
Lena Mastoris (Second Plaintiff)
Allianz Australia Insurance Limited (First Defendant)
Navigators Corporate Underwriters Ltd (for and on behalf of Syndicate 1221) (Second Defendant)
QBE Underwriting (for and on behalf of Syndicate 1886, as sub-syndicate of Syndicate 2999) (Third Defendant)
The Channel Managing Agency Ltd (for and on behalf of Syndicate 2015) (Fourth Defendant)
Chubb Insurance Australia Ltd (formerly known as ACE Insurance Ltd) (Fifth Defendant)
AIG Australia Limited (Sixth Defendant)
HDI Global SE trading as HDI-Gerling Industrial Insurance Company Australia Branch (Seventh Defendant)
Liberty Mutual Insurance Company (Eighth Defendant)
Swiss Re International SE (Australian Branch) (Ninth Defendant)
AAI Limited (Tenth Defendant)

Representation:

Counsel:

2017/294069
C Withers SC with D Healey (Plaintiffs)
C Colquhoun with A Smith (First Defendant)
N Simpson (Second and Third Defendants)
A Shearer (Fourth to Four Hundred and Fifty Seventh Defendants)

2018/52431
C Withers SC with D Healey (Plaintiffs)
C Colquhoun with A Smith (First Defendant)
N Simpson (Second and Third Defendants)
A Shearer (Fourth to Four Hundred and Fifty Seventh Defendants)

2019/209326
C Withers SC with D Healey (Plaintiffs)
R Carey (First Defendant)
M Tan (Second, Third and Fourth Defendant; mentioning appearance of Tenth Defendant)
P Boardman (Fifth Defendant)
S Lawrance (Sixth and Seventh Defendants)

Solicitors:

2017/294069
Corrs Chambers Westgarth (Plaintiffs)
Colin Biggers & Paisley (First Defendant | First Cross Defendant on Fourth Cross Claim)
Clayton Utz (Second & Third Defendants | Cross Claimants on First and Second Cross Claims | Second and Third Cross Defendants on Fourth Cross Claim)
Clifford Chance (Fourth to Four Hundred & Fifty Seventh Defendants | Cross Claimant on Fourth Cross Claim | Cross Defendant on Second and Third Cross Claims)

2018/52431
Johnson Winter & Slattery (Plaintiffs)
Colin Biggers & Paisley (First Defendant | First Cross Defendant on Fourth Cross Claim)
Clayton Utz (Second & Third Defendants | Cross Claimants on Second and Third Cross Claims | Second and Third Cross Defendants on Fourth Cross Claim)
Clifford Chance (Fourth to Four Hundred & Fifty Seventh Defendants | Cross Claimant on Fourth Cross Claim | Cross Defendant on Second and Third Cross Claims)

2019/209326
Johnson Winter & Slattery (Plaintiffs)
Moray & Agnew (First Defendant)
Lander & Rogers (Second to Fourth Defendants)
Wotton Kearney (Fifth Defendant)
HWL Ebsworth (Sixth & Seventh Defendants)
YPOL Lawyers (Eighth & Ninth Defendants)
Carter Newell (Tenth Defendant)

Objector: Mr R van Royden

File Number(s):

2017/294069; 2018/52431; 2019/209326

Judgment

1. I am asked to approve, under s 173 of the Civil Procedure Act 2005 (NSW) (“the Act”), the settlement of three representative proceedings.

2. They are:

1. proceedings [1] brought by Mr Haliburton and Mrs Marian Findlay against DSHE Holdings Ltd (receivers and managers appointed) (in liquidation) (formerly Dick Smith Holdings Limited) (“Dick Smith”), Dick Smith’s then executive directors, Mr Nick Abboud and Mr Michael Potts and its auditor, Mr David White of Deloitte Touche Tohmatsu (“Deloitte”) (“the Findlay proceedings”);

2. proceedings [2] brought by Mr Epaminondas and Mr Lena Mastoris against the same parties (“the Mastoris proceedings”); and

3. proceedings [3] brought by Mr and Mrs Mastoris against Allianz Australia Insurance Limited (“the Insurance proceedings”).

   1. 2017/294069.

   2. 2018/52431.

   3. 2019/209326.

3. The Findlay proceedings and the Mastoris proceedings are securities class actions. The plaintiffs represent persons or entities that purchased shares in Dick Smith in particular date ranges in reliance on the allegedly misleading or deceptive conduct of Dick Smith, Mr Abboud, Mr Potts and Deloitte.

4. Mr and Mrs Mastoris agitate the same issues in the Insurance proceedings against Allianz as primary insurer and a number of other insurers under a Public Offering of Securities Insurance Policy (“the Policy”) held by Dick Smith.

5. The proceedings settled in principle on 3 December 2020; the 55^th day of the hearing before Ball J.

6. The settlement involves a payment by several defendants of a total amount of $25 million (“the Settlement Sum”).

7. From the Settlement Sum, it is proposed that $19,912,125 (almost 80%) be paid:

1. as to $18,750,000 to the funders [4] the legal costs incurred to the date of the in principle settlement, 3 December 2020 (the funders have in fact incurred some $26 million in legal costs);

2. as to an amount “up to” $840,125 for the costs incurred “or estimated to be incurred” since 4 December 2020;

3. as to $40,000 to the plaintiffs for the time and expenditure they have incurred in the proceedings; and

4. as to $242,000 to the proposed Settlement Administrator, Mr John Park, for his costs of administering the settlement and as to a further $40,000 to the plaintiffs and their legal representatives for costs incurred in connection with the administration of the proposed Settlement Distribution Scheme.

   4. Vannin Capital Operations Limited, Vannin Capital (Australia) Pty Ltd, ICP Capital Pty Ltd and Investor Claim Partner Pty Ltd.

8. The balance, a little over $5 million, of the Settlement Sum is to be distributed between some 2,700 participating group members on a pro rata basis in accordance with a Loss Assessment Formula set out in the Settlement Distribution Scheme.

Decision

9. I propose to approve the settlement, subject to the change I refer to at [59] below.

10. The figure of $25 million is a disappointing result for the group members as the total of the losses they contend has arisen from the conduct complained of is in the order of hundreds of millions of dollars.

11. However, I am persuaded that the inter partes settlement achieved is the best that could reasonably be expected and that the inter se settlement, although involving group members sharing only around 20% of the Settlement Sum, is in all the circumstances fair and reasonable.

Principles

12. The central question for the Court is whether the proposed settlement is fair and reasonable in the interests of the group members considered as a whole. [5] The Court’s role in relation to group members is supervisory and protective. [6] The Court’s role is analogous to that which it assumes when approving settlements on behalf of persons with a disability. [7]

    5. For example, see Caason Investments Pty Ltd v CAO (No 2) [2018] FCA 527 at [12] (Murphy J); Blairgowrie Trading Ltd v Allco Finance Group Ltd (Rec & Mgrs Apptd) (in Liq) (No 3) [2017] FCA 330; 118 ACSR 614 at [81] (Beach J); Kelly v Willmott Forests Ltd (in liq) (No 4) [2016] FCA 323; 112 ACSR 584 at [68] (Murphy J); Camilleri v Trust Company (Nominees) Ltd [2015] FCA 1468 at [5(a)] (Moshinsky J); and Smith v Australian Executor Trustees Ltd; Creighton v Australian Executor Trustees Ltd [2018] NSWSC 1584 at [22] (Ball J).

    6. Eg Kelly v Willmott Forests at [62].

    7. Eg see Court v Spotless Group Holdings Ltd [2020] FCA 1730 at [8] (Murphy J).

13. When considering the reasonableness of the settlement inter partes, the Court is asked to determine whether the settlement is fair and reasonable considering the alternative, which is usually the risks and costs to which the plaintiff group members would be exposed were the matter to proceed to trial. [8]

    8. Eg Kelly v Willmott Forests at [64] and Williams v FAI Security Pty Ltd (No 4) [2000] FCA 1925 at [19] (Goldberg J).

14. The question of whether the settlement is reasonable per se cannot be separated from ancillary questions concerning the approval of funding and legal costs. The evaluation of whether a settlement is fair and reasonable “must be carried out by reference to what all group members obtain in their hands following the resolution of their individual claims in the event that the settlement is approved”. [9]

    9. Liverpool City Council v McGraw-Hill Financial, Inc (now known as S&P Global Inc) [2018] FCA 1289 at [2] (Lee J).

Background

15. Much of what follows is drawn, with gratitude, from the comprehensive submissions I received in support of the application, particularly those of Mr Withers SC and Mr Healey, who appeared before me on the application for the plaintiffs.

16. The “Dick Smith” business was, for many years, a well-known Australian electronics retailer.

17. The business was owned by the Woolworths Group until November 2012 when it was acquired by a private equity company, Anchorage Capital Partners Pty Ltd.

18. In the second half of 2013, Anchorage decided to exit the business.

19. Dick Smith was incorporated on 25 October 2013 for the purposes of an Initial Public Offering and was listed on the ASX on 4 December 2013.

Overview of the proceedings

20. The Findlay proceedings were commenced in September 2017. The Mastoris proceedings were commenced in February 2018. The Insurance proceedings were commenced during 2019.

21. There are further separate and unrelated proceedings involving overlapping questions of fact and law. Those other proceedings were commenced in Dick Smith’s name by Dick Smith’s receivers (the “Company Proceedings”) and by two of Dick Smith’s secured lenders, National Australia Bank and HSBC (the “Bank Proceedings”) against certain executive and non-executive directors.

22. All of these proceedings were listed for a 12-week hearing before Ball J commencing on 16 March 2020. After the plaintiffs in each case opened their cases during the first week of hearing, and following some interlocutory matters, the proceedings were adjourned due to the COVID19 pandemic.

23. The hearings resumed on 21 September 2020 and continued for some 55 days, at which point the Findlay proceedings, the Mastoris proceedings and Insurance proceedings were settled in principle on 3 December 2020.

24. The Company Proceedings and the Bank Proceedings continued and have concluded. Judgment was reserved on 15 February 2021.

25. Mr Withers and Mr Healey summarised the allegations made in the representative proceedings as follows:

“In summary, it is alleged that [Dick Smith’s] IPO prospectus (the Prospectus) was misleading, misstating its historical FY13 and 1Q14 financial results and its FY14 forecast profits and that [Dick Smith’s] business had been ‘transformed’ into a profitable company expecting a $40 million net profit after tax in FY14. It is also alleged that [Dick Smith], Mr Abboud and Mr Potts made misleading statements in relation to the reported financial results for FY14 and FY15. Further, Deloitte’s audit reports for FY13, FY14 and FY15 were also alleged to be misleading.

The plaintiffs allege that [Dick Smith] incorrectly accounted for inventory and did not value is inventory at the lower of cost and net realisable value resulting in overstated profits and overvalued net assets. Further, it is alleged that [Dick Smith] did not correctly account for certain ‘Over & Above’ or ‘O&A’ rebates, also leading to overstated profits and net assets. There were also a host of other incorrect accounting practices and deficient accounting systems and controls, none of which Deloitte detected and corrected. Ultimately, [Dick Smith] released it FY15 financial statements in August 2015 and by the end of November 2015 it had, without warning, written off $60 million worth of inventory. Just over a month later, administrators were appointed.

Various claims were made of contravention of s 728 [and 1041E and 1041H] of the Corporations Act 2001 (Cth) … Contraventions were also alleged under sections 12DA, 12DB and 1212DF of the Australian Securities and Investments Commission Act 2001 (Cth).”

26. Mr Withers and Mr Healey submitted that the proceedings were “very complicated and layered, revolving around complex issues of accounting practice and interpretation and forensic accounting”.

27. Mr Withers and Mr Healey continued:

“At their heart, the proceedings concerned alleged incorrect accounting in each of the [Dick Smith] Prospectus (incorporating FY13 historical financial statements and 1Q14 unaudited historical results – said to have been prepared in accordance with Australian Accounting Standards – and an FY14 forecast, also said to have been prepared in accordance with AAS), the FY14 annual financial statements and the FY15 annual financial statements and associated ASX announcements. Further, Deloitte’s auditing of the FY13, FY14 and FY15 financial statements was said to have been defective.

In order for the case against Deloitte to succeed, the relevant financial statements first needed to be ‘wrong’, turning on the accounting evidence. The plaintiffs’ accounting evidence was principally comprised of the expert reports of Mr Michael Potter, a well-respected and experienced forensic accountant.

In turn, the damages calculations were based upon Mr Potter’s work, his re-stated accounts being inputs into the expert reports of Mr Frank Torchio (a US economist – Mr Torchio employing an event study and a Comparable Index Method) and Mr Potter’s own damages calculation (using the Residual Income Method). The output of those reports was then a further input into the quantification evidence from a further expert, Ms Dawna Wright of FTI Consulting. The entire Prospectus case was made through the expert evidence of Mr Rowan Johnston, who was asked to assume the FY14, 1Q14 and FY14 [sic] Forecast numbers based upon Mr Potter’s restated numbers.

Thus, evidence concerning liability, causation, damages and factual/forensic matters concerning the valuation of inventory and accounting for rebates and certain other miscellaneous adjustments were interrelated.

[Dick Smith] relied upon an accounting system developed by IBM and known as AS400. [Dick Smith] being in liquidation and having no employees, and therefore nobody to assist with data extraction and interpretation, Mr Potter and his internal resources were responsible for, in effect, downloading almost the whole of the available company data, interrogating it, working out its idiosyncrasies (as best as his team could) and making sense of the results in a relative vacuum.

All the accounting experts obtained their data from AS400. There were disagreements between experts as to what certain transactions were and how they should be treated. Parties were discovering the nuances of AS400 and its outputs incrementally, as reports were served.

Experts continued to serve reports well after the hearing had commenced and further AS400 information was being revealed in a piecemeal fashion. As further information about [Dick Smith’s] business and accounting practices were revealed over the course of the whole of the proceedings, and in late evidence, this made matters increasingly difficult and riskier.”

28. I have been provided with a confidential opinion entitled “Trial Counsel’s opinion concerning proposed settlement”, signed by Mr Withers and Mr Healey, as well as by Mr Brereton SC, Ms Lindeman and Mr Cameron.

29. That document is 60 pages in length and describes, in great detail, the circumstances that led to the in principle settlement on 3 December 2020 and the reasons the Settlement Sum was agreed.

30. Counsel provided a detailed analysis of, and expressed clear views about, the plaintiffs’ prospects of success in the proceedings.

31. Particular problems arose sustaining Mr Potter’s original opinions as to the Dick Smith’s accounts, as material emerged which obliged Mr Potter (quite properly) to revise opinions earlier expressed. As the opinions expressed by the other experts retained for the plaintiffs assumed the correctness of Mr Potter’s opinions, this posed a serious problem.

32. Leaving aside the plaintiffs’ prospects of success, there was a serious issue concerning Dick Smith’s ability to meet any claim. These were summarised in submissions of Mr Colquhoun and Ms Smith, who appeared for Dick Smith, as follows:

“[Dick Smith] has been in liquidation for the entirety of the proceedings. The company was indemnified by its insurers to defend the proceedings under two separate policies of insurance – [the Policy] which responded to the Prospectus Claims and a Directors & Officers (D&O) insurance policy which responded to the Post-IPO Claims. This, ultimately, was the catalyst for the Insurance Proceeding.

The insurance available to [Dick Smith] under the D&O policy was fully eroded in February 2020, prior to the initial trial in March 2020 and many months prior to the resumption of the trial in September 2020. The consequence of that erosion combined with the partial declination of coverage by the insurers under the [Policy] was that [Dick Smith] was without funds to defend or meet any liability relating to the Post IPO Claims.

[Dick Smith] did not lead evidence, cross-examine witnesses, or make submissions in relation to the Post-IPO Claims. Whilst the plaintiffs maintained the Post-IPO Claims against [Dick Smith], that pursuit was futile as [Dick Smith] had no assets from which to meet any judgment.

Accordingly, in the event that settlement is not approved, the plaintiffs could only hope to recover from [Dick Smith] in respect of the Prospectus Claims…”

33. In these circumstances Mr Withers and Mr Healey submitted, and I accept, that the settlement that has been achieved is the best that could reasonably be expected in the very difficult circumstances in which the representative plaintiffs found themselves.

Costs

Costs to 3 December 2020

34. The plaintiffs received litigation funding for their costs and disbursements in the proceedings.

35. The Settlement Distribution Scheme is drafted so that those costs and disbursements are deducted in priority to any other distributions from the Settlement Sum. The effect of this is that those costs and disbursements will be borne by the registrants as a whole, in proportion to their share of the proceeds from the Settlement Sum. Subject to consideration of the quantum of the costs, I am satisfied that this is an appropriate and fair result.

36. The costs here are extremely high.

37. The actual costs paid by the funders are in the order of $26 million. The plaintiffs’ solicitors’ contractual entitlement to costs, including uplifts and the like, is in the order of $29 million.

38. The costs to be deducted from the settlement of $25 million include $18.75 million for costs to the date of the in principle settlement.

39. The proceedings were large and complex. They were vigorously defended.

40. The plaintiff served 15 lay affidavits (including nine from the plaintiffs themselves) together with 36 expert reports. There were numerous interlocutory appearances and disputes and one concerning whether these proceedings should be heard concurrently with the Company Proceedings and the Bank Proceedings.

41. There were numerous directions hearings.

42. The Court’s role is to assess whether costs incurred in a class action are reasonable and proportionate.

43. On 4 October 2019, Ball J appointed Ms Elizabeth Harris as an independent cost referee, pursuant to s 183 of the Act, to conduct an inquiry and to report on the question of whether there was unnecessary or excessive duplication of the work performed by the lawyers acting for the plaintiffs in the proceedings, Johnson Winter & Slattery and Corrs Chambers Westgarth.

44. It is, of course, for me and not Ms Harris to determine whether the costs incurred were reasonable and proportionate.

45. However, the analysis that Ms Harris has made of the costs incurred to 3 December 2020 persuades me that the costs are reasonable, bearing in mind the work done.

46. Ms Harris drew attention to a Cooperation Agreement reached between the two law firms in September 2018 and to a Litigation Protocol made between the two law firms during the course of the hearing.

47. In her report of 28 February 2020 Ms Harris reported, in respect of the period from July 2019 to January 2020:

“Based on my experience, I consider that the development of a detailed budget, close monitoring of costs against budget and the clear division of work has, to date, resulted in the work being undertaken cost-effectively, and the avoidance of duplication of work.

The level of overall costs in the two proceedings may give rise to issues of proportionality depending on any settlement. In my opinion, both JWS and CCW are conducting the proceedings in as lean a way as possible given the complexity and scope of issues and law, and the need to monitor all five proceedings which are being heard together. It is simply not realistic and unreasonable to expect that the lawyers conduct the proceedings without reference to the Bank, Liquidators and Insurance proceedings, noting that evidence in one is evidence in the others.”

48. In her report of 19 February 2021, Ms Harris addressed costs as sought to be deducted now.

49. Ms Harris stated:

“I am aware that the proceedings have settled in principle (subject to court approval) with a proposed amount of $18.75 million as reimbursement of legal costs.

I have been requested by the lawyers to express an opinion on the reasonableness of the legal costs sought as part of the settlement.

I have been provided with details of the actual total costs as of 3 December 2020, being the date when the parties reached an ‘in principle’ settlement. At that date, the legal costs paid by the funders totalled $26,779,013.94 (inc GST). This sum excludes deferred fees and the uplift fees that the lawyers were entitled to seek according to the terms of the relevant legal cost agreement. The total costs as of 3 December 2020 inclusive of the deferred fees and uplift are $29,332,677.31 … Therefore, the proposed settlement allows 64% of the possible total costs (including deferred fees and uplift).

…

However, based on my experience, and my review of the costs undertaken as part of my previous reports, there is no likelihood that I would reduce the total costs to a figure below the $18.75 million legal costs sought in the settlement.

…

For the above reasons, and based on my experience, I consider that an allowance of $18.75 million (inc GST) is likely to be considerably less than the fair and reasonable costs which would be allowed if I undertook a review and assessment of costs.”

50. I see no reason to doubt Ms Harris’s opinions. I accept that, were there to be a formal assessment of the plaintiffs’ costs to 3 December 2020, those costs would be assessed as being at least $18.75 million and that the costs are, in that sense, reasonable.

Costs since 4 December 2020

51. The plaintiffs seek approval of deducting from the Settlement Sum an amount “up to” $840,125 for costs incurred and to be incurred since 4 December 2020.

52. The only evidence to which my attention was drawn concerning these costs are schedules setting out fees rendered by counsel and by the virtual court provider, Epiq, together with “unbilled” and “estimated” costs of Johnson Winter & Slattery and Corrs Chambers Westgarth and “estimated” costs of counsel. The “unbilled” and “estimated” costs amount to some $580,000; some 70% of the amount of the proposed deduction.

53. Ms Harris has not expressed any opinion about these fees, no doubt because they are in large part not yet rendered.

54. Mr Withers and Mr Healey did not deal with this question in their submissions.

55. Following the hearing, through my associate, I asked the plaintiffs to direct me to any evidence concerning the reasonableness of the proposed deduction of $840,125. My attention was directed to the evidence to which I have referred.

56. Mr Dallen, the partner at Corrs Chambers Westgarth responded by directing me to the evidence to which I have referred and stated:

“Further, as this issue was not specifically raised at the hearing, if after considering the above evidence his Honour requires anything further, the Class Action Plaintiffs will be happy to provide additional details by way of further affidavit and/or have Ms Harris … review and prepare a report to the Court on these costs.”

57. However, I was not meaning by my enquiry to invite the plaintiffs to seek to reopen their case on the settlement approval application. I must decide the application on the basis of the evidence adduced in the hearing, including that to which I have referred.

58. I have no doubt that costs have been incurred since 4 December 2020, including preparation and distribution of the Court approved Notice to Group Members of the Settlement, registration of group members, negotiation and finalisation of the Settlement Distribution Agreement, preparation of Mr Withers’ and Mr Healey’s submissions, preparation of counsel’s confidential opinion and preparation of the court book and other materials necessary for the application for settlement approval.

59. My conclusion is that the appropriate way to deal with this is to qualify the order proposed by the plaintiffs in relation to this figure by providing that the amount to be deducted on account of the unbilled and estimated costs of Johnson Winter & Slattery and Corrs Chambers Westgarth is to be no more than is certified to be reasonable by Ms Harris and that the costs of such certification is to be borne by the Funders.

Proportionality

60. The costs are, obviously, a very high proportion of the Settlement Sum.

61. But proportionality in the context of the settlement achieved here must take into account the prospects of the representative plaintiffs achieving a better result were I to refuse to approve the settlement and, in effect, send them back to the Court to continue the battle.

62. Those prospects appear most uncertain.

63. What has been achieved by the proposed settlement does appear to be the best that can be done. I fear that, were I not to approve the settlement, the group members represented by the plaintiffs would in the end be worse off than were I to approve the settlement and thereby cause them to achieve the admittedly modest return that would result.

64. Overall, my conclusion is that the proposed costs are not, in all the circumstances, disproportionate to the result achieved.

Reimbursement to representative plaintiffs

65. The settlement proposes that, after deduction of the plaintiffs’ legal costs and disbursements, there be paid to the plaintiffs a total amount of $40,000 to compensate them for the time and expenditure they have incurred.

66. The particular distribution proposed is:

1. $20,000 to Mr Mastoris;

2. $10,000 to Mr Findlay;

3. $10,000 to Mrs Findlay.

67. It is now established that, in an appropriate case, a plaintiff in a class action is entitled to be compensated for the time he or she expends attributable to the representative features of that person’s involvement as a party to litigation. The purpose of an award is not to compensate such a person for the ordinary incidence of a person’s involvement in litigation for his or her own interests, [10] but rather for the time and expenditure fairly attributable to their role as a representative party.

    10. Eg Money Max Int Pty Ltd v QBE Insurance Group Ltd [2018] FCA 1030; (2018) 358 ALR 382 at [212] (Murphy J); Farey v National Australia Bank Limited [2016] FCA 340 at [42] (Beach J).

68. Mr Mastoris and Mr and Mrs Findlay did not maintain records of the time they spent in a representative capacity in these proceedings. However, each has given evidence that they spent an extensive amount of time during the three-odd years that these proceedings have been pending.

69. It is not necessary that I set out the details of that evidence. The amount of compensation proposed is relatively modest and was not disputed. I find it to be reasonable.

Deed administration costs

70. Finally, it is proposed that an amount up to $282,000 be utilised for the costs of administering the Settlement Scheme, including $242,000 to Mr Park, of FTI Consulting (Australia) Pty Limited, the proposed Scheme Administrator.

71. Administration of the Settlement Scheme is likely to be complex. There will be up to 2,700 group members’ claims to be considered. There is evidence that Mr Park’s proposed fees are at the lower end of the range to be expected in cases like this. I find this proposed deduction from the Settlement Sum to be reasonable.

Commission

72. The funders have agreed to forego their commission.

73. The commission to which the funders would be entitled, according to their Litigation Funding Agreements, would absorb most, if not all of the Settlement Sum after deduction of the costs and other amounts I have discussed.

74. Approval of the settlement will have the effect of the funders foregoing recovery of many millions of dollars to which they would be otherwise entitled.

The Settlement Distribution Scheme

75. Mr Park is the proposed Scheme Administrator. He will be assisted by Ms Dawla Wright. Ms Wright was retained as the plaintiffs’ damage quantification expert in the proceedings and has access to group member data for the purpose of preparing her expert report.

76. Mr Withers and Mr Healey gave the following summary of the “mechanics” of the Settlement Distribution Scheme, which I adopt, including the use of various terms defined in the scheme document.

77. The Settlement Sum will be paid into a Distribution Fund Account to be held on trust for registrants and distributed to registrants as expeditiously as possible. The Scheme Administrator must act in accordance with the “Scheme Objectives”. Those objectives require him to act with the best interests of the registrants as a whole and with a view to striking a balance between providing a reasonable time to participate in distributions, ensuring that Administration Costs are kept to a reasonable level. The Administrator is to adopt a practical, proportionate and cost-effective approach and Scheme Payments are to be paid to participating group members within a reasonable time. The Administrator has limited liability.

78. The Administrator must make an assessment of each registrant’s claim by applying a Loss Assessment Formula to each registrant’s Claim Data and to notify each registrant of the outcome in a Settlement Notice.

79. The Claim Data can come from various sources. These can include the plaintiffs’ affidavits, registration data obtained during the course of mediations and in accordance with the Court’s mediation order and data supplied by those who have entered into Litigation Funding Agreements with the Funders.

80. The Administrator is not obliged to verify the Claim Data and may assume its correctness, although he may make enquiries if he thinks appropriate. This is for two reasons. First, further costs would be incurred were the Administrator bound to enquire into the veracity and correctness of the Claim Data for 2700 registrants. Second, the Claim Data has already been subject to testing and correction in circumstances where it is reasonable to conclude that the Claim Data is likely to be accurate.

81. Once the Administrator makes an assessment, and notifies that assessment to participating group members, those members may appeal but only to the Administrator. This is also to keep costs to a reasonable level and not to erode further the amount available for distribution to group members as a whole.

82. The Administrator may approach the Court for directions and must report to the Court.

83. The schedule to the Settlement Distribution Scheme is a detailed and complex Loss Assessment Formula which will calculate, for each registrant, “loss” to be the aggregate of losses on each parcel of shares purchased and sold. The formula takes the inflation on each purchase and subtracts it from the inflation on each sale on a last-in-first-out basis. Interest is applied to the result.

84. Each result is then scaled. The scaling factor is judgmental, reflecting the relative strength of claims as between three claim periods and taking into account the prospects of success and the availability of insurance proceeds.

85. The calculation is undertaken on an “artificial inflation basis” and individual base-loss is not calculated. This is said to be because the costs of the mechanics of doing so would be disproportionate and would result in lengthy delay.

86. I see no reason to doubt the correctness of Mr Withers’ and Mr Healey’s submission that the settlement distribution scheme represents a fair, reasonable and proportionate solution for distribution of the Settlement Fund. No party made a submission to the contrary.

Consequences of approval for group members

87. It is a term of the settlement that the plaintiffs, on their own behalf and on behalf of the group members they represent, give releases to the defendants.

88. The scope of the releases is confined to the claims made in the proceedings. The releases therefore do not go beyond the scope of the plaintiffs’ representative authority. [11]

    11. A matter emphasised by Murphy J in Court v Spotless Group Holdings Ltd [2020] FCA 1730 at [20].

89. The effect of approval of the settlement will be that all group members will be bound by the settlement, save for those who have opted out.

90. On 20 August 2018, the Court made orders by consent for an opt out and registration process and for a mediation to occur within the two weeks prior to 23 November 2018. The effect of the orders was that a group member who failed to register would not be entitled to receive a distribution from any settlement reached at mediation or during the settlement period, but would be bound by the terms of the settlement approved by the Court.

91. The 20 August 2018 orders were extended by orders made on 26 April 2019, 12 June 2019, 8 July 2019 and 4 September 2019 and, most recently, on 3 December 2019 when the settlement period was extended to 21 February 2020. No settlement was reached within the extended settlement periods.

92. At the time the parties reached the settlement the subject of the application before me, the proceedings were continuing on an open class basis.

93. In Haselhurst v Toyota Motor Corp Australia Ltd t/as Toyota Australia [12] the Court of Appeal held that the Court did not have power under s 183 of the Act to make a class closure order prior to settlement and in order to facilitate settlement. [13]

    12. [2020] NSWCA 66 (Bell P, Macfarlan, Leeming and Payne JJA and Emmett AJA).

    13. Eg Bell P at [12].

94. However, the Court expressly contemplated the possibility that such orders could be made under ss 173 and 179 of the Act at the time of settlement. [14] Further, as Mr Colquhoun and Ms Smith pointed out, the Court of Appeal in Haselhurst referred with apparent approval to the judgment of Beach J in Newstart 123 Pty Ltd v Billabong International Ltd [15] where his Honour approved a settlement in which unregistered group members did not receive distribution but were nevertheless bound by the settlement. [16]

    14. At [53], [87], [105] and [108] (Payne JA, with whom Bell P, Macfarlan and Leeming JJA and Emmett AJA agreed).

    15. [2016] FCA 1194; (2016) 343 ALR 662.

    16. At [97] per Payne JA.

95. I am satisfied that I have power to approve the settlement having consequence that all group members, save those who have opted out, will be bound by the settlement.

Late registrants

96. A Notice of Settlement, approved by the Court, was dispatched by email and posted to group members by 24 December 2020.

97. A small number of group members have sought to register to participate in the settlement out of time. Some of those late registrants have not given any, or any adequate, reason for registering beyond the deadline in the Notice of Settlement. Mr Withers accepted that their participation will make no significant difference to distributions to other group members; I propose to grant them leave to participate. I understand that the orders now proposed by the plaintiffs reflect this.

The objectors

98. There are over 2,700 registrants to participate in the settlement. Only eight registrants have objected to the Settlement and each has elected to participate in the settlement if their objection fails. Of the eight objectors, only four have given reasons for their objection and only one, Mr van Royden, participated in the hearing before me.

Mr Phippard

99. Mr Phippard contended that the $25 million settlement was “quite inadequate and neither fair nor reasonable to Class Members” and that the amount of costs proposed to be deducted was excessive.

100. However, as I have sought to explain, consideration of the reasonableness of the settlement must take account of the alternatives to settlement, which is to proceed with litigation with all the uncertainties and risk involved. Understandably, Mr Phippard’s objection does not seek to provide analysis of those matters.

Mr Payton

101. Mr Payton contended that the amount of costs proposed to be deducted from the Settlement Sum are “grossly excessive and disproportionate” and submitted that legal costs should be “capped at no more than 50% of the Settlement Sum” because:

1. the settlement was, in effect, a capitulation by the plaintiffs and the funders; and

2. group members have borne loss, while the litigation funders recoup most, if not all, of their investment.

102. I have explained why I am satisfied that the settlement achieved is the best that could be reasonably expected in the circumstances, whether or not it could be described as a “capitulation” and the evidence before me shows that the funders will suffer a significant loss arising out of these proceedings. That is, of course, a risk that the funders took. But had the funders not funded litigation, there may well have been no representative proceedings at all, or the group members would have received no compensation for their loss.

103. Mr Payton also contended that the matter “ought to have been litigated in a manner more prudently, consistent with the prospects of success and prospects of recovery having regard to insurance limits”. There are a large number of assumptions behind that assertion and I am not able to reach any such conclusion.

104. Mr Payton also contended that the Court should have regard to any earlier offers of settlement and that:

“If the plaintiffs/litigation funders declined an offer of settlement commensurate with or better than the final settlement, the costs incurred after that earlier offer ought not be met out of the Settlement Sum.”

105. I am not able to make any assessment of that contention as I do not know what, if any, earlier offers were made to settle these proceedings, let alone whether it was reasonable or unreasonable of the plaintiffs, and those advising them, to decline to accept such offers.

Mr Maier

106. Mr Maier’s objection was brief. He said:

“The settlement amount is ridiculously low and more than 75% of it will be distributed towards covering legal costs and administrative expenses. In the end, there is virtually nothing left to distribute to Class Members. This is totally unacceptable. The fraudulent activities of Dick Smith’s directors and auditor Deloitte are clear. I demand a better outcome for Class Members!”

107. Mr Maier’s unhappiness with the result is understandable but does not take the matter any further than the contentions of the other objectors. I should record that it was no part of the plaintiffs’ case that anyone had engaged in “fraudulent activities”.

Mr van Royden

108. Mr van Royden purchased shares in Dick Smith in December 2015, shortly after Dick Smith had announced a $60 million write-down and following which, according to the expert evidence, there had been no artificial inflation of the Dick Smith share price by reason of the conduct complained of.

109. The Settlement Distribution Scheme, as originally proposed, would have meant that because Mr van Royden and others in his position purchased shares in these circumstances, he and they would not have been entitled to receive a distribution.

110. However, evidently in response to Mr van Royden’s objection, the Settlement Distribution Scheme has been altered to introduce a “no transaction” measure which will allow members in Mr van Royden’s position to include a loss calculation measure.

111. Before me, Mr van Royden acknowledged that this change had been made.

112. Also before me, Mr van Royden accepted, having heard Mr Withers’ submissions, that the inter se settlement “seems to be the best deal for everyone”. [17]

     17. T5.26.

113. In his written objection, Mr van Royden contended that there should be a hearing to determine the merits of the plaintiffs’ claim and of the defendants’ position in order to give group members an “opportunity to see justice administered”, to give “closure to creditors” and to create a precedent.

114. These are understandable sentiments but, as I understand Mr van Royden’s position, they have now been overtaken by his acceptance that the settlement is the best that can be achieved.

115. Mr van Royden pointed to the disparity between the share of the Settlement Sum that the funders will receive as compared to group members.

116. Again, this is an understandable concern for Mr van Royden to have. However, the funders are making a loss in the proceedings and the costs that they seek to have deducted from the Settlement Sum are, in my opinion, reasonable and, in the circumstances, proportionate.

117. I also record that Mr van Royden commenced proceedings against Dick Smith and against Mr Abboud and Mr Potts. Those proceedings are currently stayed. [18]

     18. van Royden v DSHE Holdings Ltd (Rec and Mgrs Apptd) (in liq) [2018] NSWSC 1773 (Ball J).

118. Mr Withers and Mr Healey informed me that it appeared that Mr van Royden had, on an earlier occasion, opted out of these proceedings but has now opted back in.

119. It will be a matter for Mr van Royden to decide what course he now takes in relation to those two matters.

Conclusion

120. I am satisfied that I should approve the settlement, but subject to the matter at [59] above, which is reflected in Order 7(a)(ii) below.

121. I make the following orders:

1. Pursuant to s 173 of the Civil Procedure Act 2005 (NSW) (Act):

1. the terms of the settlement of proceeding no 2017/294069 (Findlay Proceeding), proceeding no 2018/52431 (Mastoris Proceeding) and proceeding no 2019/209326 (Insurance Proceeding) (together the Class Action Proceedings) (Settlement) as recorded in the Deed of Settlement and Release dated 5 March 2021 and contained at Tab 1 of Confidential Exhibit RGJ-11 to the affidavit of Robert Guy Johnston sworn on 4 March 2021 (Settlement Deed) is approved; and

2. the terms of the Settlement Distribution Scheme contained at Tab 2 of Confidential Exhibit RGJ-11 to the affidavit of Robert Guy Johnston sworn on 4 March 2021 (SDS) is approved.

2. Pursuant to s 183 of the Act, the Plaintiffs are authorised, nunc pro tunc, to enter into the Heads of Agreement dated 7 December 2020 and the Settlement Deed for and on behalf of all group members (excluding those persons who opted out of the proceeding by 19 November 2018 or after that date with the approval of the Court) (Group Members).

3. Pursuant to s 179 of the Act, the persons affected and bound by the Settlement are the Plaintiffs, the Defendants, the Group Members, the D&O Insurers (as defined in the Settlement Deed) and the Funders (as defined in the Settlement Deed).

Administration of settlement

1. Pursuant to ss 173 and/or 183 of the Act, Mr John Richard Park of FTI Consulting (Australia Pty Ltd) is appointed as administrator of the SDS (Settlement Administrator).

2. The Settlement Administrator is granted liberty to relist the proceeding for the purpose of seeking orders consequential to or in connection with the Settlement and/or the SDS.

3. The Settlement Administrator is joined as a party to the proceeding pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) for the limited purpose of exercising the liberty granted under order 5 above.

4. Pursuant to s 173(2) of the Act and for the purposes of the SDS, payments of the following amounts out of the Distribution Fund Account are approved:

1. the Plaintiffs’ Legal Costs in the amount of up to $19,590,125 inclusive of GST comprising the Plaintiffs’ reasonable costs and disbursements incurred or estimated to be incurred in conducting the proceeding, including:

1. $18,750,000 inclusive of GST in costs incurred up to 3 December 2020 to be paid to Vannin Capital Operations Limited and Vannin Capital (Australia) Pty Ltd (together, Vannin) and ICP Capital Pty Ltd and Investor Claim Partner Pty Ltd (together, ICP) (collectively, the Funders) (on the basis that 50% of this amount be paid to Vannin and 50% of this amount be paid to ICP); and

2. up to $840,125 inclusive of GST in costs incurred, or estimated to be incurred, between 4 December 2020 and the date of this judgment in obtaining approval of the Settlement to be paid to the Plaintiffs’ legal representatives provided that the amount to be deducted on account of the unbilled and estimated costs of Johnson Winter & Slattery and Corrs Chambers Westgarth is to be no more than is certified by Ms Elizabeth Harris to be reasonable and that the costs of such certification is not be paid out of the Distribution Fund Account and is to be paid by the Funders;

2. the following amounts to the Plaintiffs for the time spent and expenditure reasonably incurred in the proceedings for the benefit of the Group Members:

1. $20,000 to Mr Epaminondas Mastoris;

2. $10,000 to Mr Haliburton Charles David Findlay; and

3. $10,000 to Mrs Marian Jennifer Findlay;

3. up to $282,000 inclusive of GST to the Settlement Administrator, the Plaintiffs and their legal representatives, the Funders or The Advisory Company Pty Ltd (as the case may be) for costs and disbursements incurred in connection with the administration of the SDS.

Registrants

1. The following persons are deemed to have registered to receive a distribution from the proceeds of the Settlement pursuant to paragraphs 10 and 11 of the orders made on 17 December 2020:

1. Stephen Anthony Bosse;

2. Rodney Alexander Willis;

3. Rodney Alexander Willis and Roslyn Lister Willis;

4. Kingsley Woods Pty Ltd atf Kennedy Family Super Fund;

5. Leon Brett Andrew;

6. Stephen Patrick Kameniar;

7. Brian Leslie Garrington;

8. Graeme Robert Stevens;

9. Siew Hsia Chu;

10. Flora Yu;

11. Terence Reginald Cook;

12. Kevin Wong;

13. Charbel Elhage; and

14. Christopher Paul Sierink.

Discontinuance

1. The Class Action Proceedings are discontinued with no order as to costs, with such discontinuance to take effect upon completion of administration of the SDS, being the date of receipt by the Court of a report under clause 9.1 of the SDS.

2. All previous costs orders made in the Class Action Proceedings are vacated.

Return of security for costs

1. The security provided by the Funders in the form of Deeds of Indemnity in favour of each of the Defendants and payment into Court of security for the costs of enforcing the Deeds of Indemnity, and any interest accrued on that amount, pursuant to orders made on 10 May 2019 (in the case of Deloitte), 20 June 2019 (in the case of the Company, Abboud and Potts) and 15 October 2019 and 20 December 2019 (in the case of the defendants to the Insurance Proceeding) be returned to the Funders.

Suppression order

1. Pursuant to s 183 of the Act and/or ss 7 and 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW), until further order, in order to prevent prejudice to the proper administration of justice, the Court orders that:

1. Tab 1 of Confidential Exhibit RGJ-8 to the affidavit of Robert Guy Johnston sworn 16 December 2020;

2. Tabs 1, 9, 10 and 11 of Confidential Exhibit RGJ-10 to the affidavit of Robert Guy Johnston sworn 25 February 2021;

3. Confidential Exhibit ILD-2 to the affidavit of Ian Leslie Dallen sworn 25 February 2021;

4. Confidential Exhibit ILD-3 to the affidavit of Ian Leslie Dallen sworn 1 March 2021;

5. pages 37-42 of Confidential Exhibit SRW-3 to the affidavit of Simon Richard Weeks sworn 5 March 2021;

6. the confidential opinion of trial counsel concerning the proposed settlement dated 26 February 2021; and

7. the supplementary confidential opinion of trial counsel concerning the amended Settlement Distribution Scheme dated 4 March 2021,

are not to be disclosed (by publication or otherwise) to any person or entity, except to:

8. the judge case-managing and/or hearing the Settlement Approval Application or any appeal therefrom;

9. the Plaintiffs and their legal representatives; and

10. the Funders.

Annexure A Deloitte Defendants (5 to 457) (32710, pdf) 

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Endnotes

Decision last updated: 17 March 2021