FEDERAL COURT OF AUSTRALIA
Foley v Gay [2016] FCA 273
File number: NSD 1021 of 2015 Judge: BEACH J Date of judgment: 21 March 2016 Catchwords: REPRESENTATIVE PROCEEDING – approval of settlement by Court – s 33V of Federal Court of Australia Act 1976 (Cth) – whether proposed settlement is fair and reasonable as between group members and respondents – whether proposed distribution scheme is fair and reasonable as between group members Legislation: Federal Court of Australia Act 1976 (Cth) ss 33V, 33ZF Cases cited: Camilleri v The Trust Company (Nominees) Ltd [2015] FCA 1468
Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311
Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459
Date of hearing: 21 March 2016 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 34 Counsel for the Applicant: Mr J C Sheahan QC with Mr A K Flecknoe-Brown Solicitor for the Applicant: Maurice Blackburn Lawyers Counsel for the First Respondent: The First Respondent did not appear Counsel for the Second and Third Respondents: The Second and Third Respondents did not appear ORDERS
NSD 1021 of 2015 BETWEEN: SEAN FOLEY
Applicant
AND: JOHN EUGENE GAY
First Respondent
WAYNE LEONARD CHAPMAN
Second Respondent
GREGORY PHILLIP L’ESTRANGE
Third Respondent
JUDGE:
BEACH J
DATE OF ORDER:
21 MARCH 2016
THE COURT ORDERS THAT:
1.Pursuant to sections 33V and 33ZF of the Federal Court of Australia Act 1976 (Cth) (Act), the settlement of the proceeding between the applicant and the respondents (the Proceeding) be and is approved on the terms:
(a)set out in the confidential Deed of Settlement executed by the applicant, respondents, Maurice Blackburn Pty Ltd and IMF Bentham Limited (Deed of Settlement) being Confidential Exhibit MN2-1 to the Affidavit of Miranda Nagy affirmed on 7 March 2016; and
(b)set out in the Settlement Distribution Scheme and the Confidential Annexure B Loss Assessment Formula, being Exhibit MN1-1 and Confidential Exhibit MN2-2 respectively to the said affidavit of Miranda Nagy.
2.Pursuant to section 33ZF of the Act, Maurice Blackburn be appointed Administrator of the Settlement Distribution Scheme and to act in accordance with the rules of the Settlement Distribution Scheme, subject to any direction of the Court.
3.Pursuant to section 33ZF of the Act, the applicant be authorised nunc pro tunc on behalf of the group members as defined in paragraph 1 of the amended statement of claim filed on 23 December 2015 to enter into and give effect to the Deed of
Settlement and the transactions contemplated thereby for and on behalf of the group members.
4.Pursuant to section 33ZF of the Act, the amount of $18,200 referred to in the said affidavit of Miranda Nagy be approved as the amount of the Applicant Reimbursement Payment for the purposes of the Settlement Distribution Scheme.
5.Pursuant to section 33ZF of the Act, the Applicant’s Costs and the Administration Costs totalling $2,328,992.40 (inclusive of GST) identified as reasonable in the report…
Continue reading Foley v Gay
Sign in free to access the full text
- AGLC
- Foley v Gay [2016] FCA 273
- Case
- [2016] FCA 273
- Decision Date
CaseChat Overview and Summary
The court considered the merits of the settlement agreement and distribution scheme, examining whether they provided a fair outcome for all parties involved. The court also assessed the proposed distribution scheme to determine if it was equitable among the group members. Ultimately, the court found the settlement to be fair and reasonable, taking into account the terms of the Deed of Settlement, the distribution scheme, and the loss assessment formula. The court was satisfied that the settlement provided an appropriate resolution to the proceeding, balancing the interests of all parties.
In light of its findings, the court approved the settlement on the terms set out in the Deed of Settlement and the distribution scheme. It appointed Maurice Blackburn as the Administrator of the Settlement Distribution Scheme, authorized the applicant to enter into the Deed of Settlement on behalf of the group members, and approved the reimbursement and costs amounts. The court also made orders regarding the confidentiality of certain documents and the notification of group members about the settlement approval.
The court's final orders included the approval of the settlement terms, the appointment of the Administrator, the authorization for the applicant to enter into the settlement, and the approval of the reimbursement and costs amounts. Additionally, the court made orders regarding the confidentiality of certain documents and the notification of group members about the settlement approval. The court also noted the agreement between the parties that the respondents would not bear any costs associated with implementing the settlement.
Orders
Orders of the court
1. Pursuant to sections 33V and 33ZF of the Federal Court of Australia Act 1976 (Cth) (Act), the settlement of the proceeding between the applicant and the respondents (the Proceeding) be and is approved on the terms:
(a) set out in the confidential Deed of Settlement executed by the applicant, respondents, Maurice Blackburn Pty Ltd and IMF Bentham Limited (Deed of Settlement) being Confidential Exhibit MN2-1 to the Affidavit of Miranda Nagy affirmed on 7 March 2016; and
(b) set out in the Settlement Distribution Scheme and the Confidential Annexure B Loss Assessment Formula, being Exhibit MN1-1 and Confidential Exhibit MN2-2 respectively to the said affidavit of Miranda Nagy.
2. Pursuant to section 33ZF of the Act, Maurice Blackburn be appointed Administrator of the Settlement Distribution Scheme and to act in accordance with the rules of the Settlement Distribution Scheme, subject to any direction of the Court.
3. Pursuant to section 33ZF of the Act, the applicant be authorised nunc pro tunc on behalf of the group members as defined in paragraph 1 of the amended statement of claim filed on 23 December 2015 to enter into and give effect to the Deed of
Settlement and the transactions contemplated thereby for and on behalf of the group members.
4. Pursuant to section 33ZF of the Act, the amount of $18,200 referred to in the said affidavit of Miranda Nagy be approved as the amount of the Applicant Reimbursement Payment for the purposes of the Settlement Distribution Scheme.
5. Pursuant to section 33ZF of the Act, the Applicant’s Costs and the Administration Costs totalling $2,328,992.40 (inclusive of GST) identified as reasonable in the report that forms annexure LFF-1 to the affidavit of Lydia Fogl affirmed on 7 March 2016 be approved as the total amount of the Applicant’s Costs and the Administration Costs for the purposes of the Settlement Distribution Scheme.
6. Pursuant to section 37AF(1)(a) of the Act, Confidential Exhibit MN2 and all individual documents within it be treated as confidential and 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 or made available and any electronic version thereof be treated in an analogous fashion.
7. Pursuant to section 37AG of the Act, the order in paragraph 6 is made, as regards the document marked as Confidential Exhibit MN2-1, on the ground that the order is necessary to prevent prejudice to the proper administration of justice given the agreed confidentiality negotiated between the parties.
8. Pursuant to section 37AG of the Act, the order in paragraph 6 is made, as regards the documents marked as Confidential Exhibits MN2-2 to MN2-7 and MN2-9, on the ground that the order is necessary to prevent prejudice to the proper administration of justice because the documents are subject to legal professional privilege or contain material subject to legal professional privilege, which privilege has not been waived.
9. Pursuant to section 37AG of the Act, the order in paragraph 6 is made, as regards the document marked as Confidential Exhibit MN2-8, on the ground that the order is necessary to prevent prejudice to the proper administration of justice because the documents were provided to Maurice Blackburn on a confidential basis by the applicant and may disclose commercial information about third parties.
10. The period for which the order in paragraph 6 shall operate is ten years from the date of this order.
11. IMF Bentham Limited by 4.00pm on 24 March 2016 send to each group member to their last known email address notification of the fact of Court approval today of the settlement of the Proceeding.
12. Maurice Blackburn have liberty to apply for directions in connection with the Settlement Distribution Scheme and otherwise generally in relation to any matter concerning the Scheme or the Proceeding.
AND THE COURT NOTES THAT:
13. It is agreed between the parties that none of the respondents or any past or present director of Gunns Limited (ACN009478148) will bear any of the costs and disbursements associated with implementing the Settlement Distribution Scheme.
14. Following the distribution of funds to group members pursuant to the Settlement Distribution Scheme, the applicant will in accordance with the Deed of Settlement apply for orders dismissing the Proceeding with no order as to costs.
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.