JUDGE:	Waller J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2024
DATE OF RULING:	26 June 2024
CASE MAY BE CITED AS:	Gawler v FleetPartners Group Ltd
MEDIUM NEUTRAL CITATION:	[2024] VSC 365

---

GROUP PROCEEDINGS — Costs — Application for a group costs order — Costs to be calculated as a percentage of the amount of any award or settlement recovered — Whether the Court should make the group costs order — Whether proposed percentage appropriate or necessary to ensure that justice is done in the proceeding — Whether ‘appropriate or necessary’ should be read disjunctively or conjunctively — Exercise of discretion — Principles to be applied — Application granted — Supreme Court Act 1986 (Vic) s 33ZDA — Fox v Westpac Banking Corporation (2021) 69 VR 487 — Bogan v Estate of Peter John Smedley (Deceased) [2022] VSC 201 — Nelson v Beach Energy Ltd [2022] VSC 424 — Allen v G8 Education Ltd [2022] VSC 32.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms FK Forsyth KC with Mr TL Bagley	Phi Finney McDonald
For the Defendant	Ms WA Harris KC with Mr TP Diaz	Herbert Smith Freehills

HIS HONOUR:

A. INTRODUCTION

This is a group proceeding brought under Pt 4A of the Supreme Court Act 1986 (‘Act’).

The representative plaintiff, Dr Ross Gawler, brings his claim against ASX-listed company FleetPartners Group Ltd, formerly Eclipx Group Ltd (‘Eclipx’), a provider of fleet car, equipment finance and management services to customers in Australia and New Zealand. The group members are, in simplified terms, persons who acquired an interest in Eclipx shares between 8 November 2017 and 20 March 2019. The plaintiff claims loss and damage, alleging that Eclipx engaged in misleading or deceptive conduct, made misleading statements and breached its obligations of continuous disclosure to the market about its financial performance, future earnings guidance and its systems and processes for recognising and forecasting revenue. The claims are disputed by the defendant.

By summons filed on 25 April 2024, the plaintiff seeks a group costs order (‘GCO’) pursuant to s 33ZDA of the Act for the legal costs payable to his solicitors, Phi Finney McDonald Pty Ltd (‘PFM’), to be calculated as 39% of the amount of any award or settlement that may be recovered in the proceeding.

In support of his application, the plaintiff relies on:

(a) the affidavit of Dr Gawler affirmed 24 April 2024 (‘Gawler Affidavit’);

(b) the affidavit of Mr Timothy Finney, a Director and Principal Lawyer of PFM, affirmed 24 April 2024 (‘First Finney Affidavit’);

(c) the affidavit of Mr Finney affirmed 6 May 2024; and

(d) the plaintiff’s submissions in support of his application for a group costs order filed 25 April 2024 (‘Plaintiff’s Submissions

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.

Continue reading Gawler v FleetPartners Group Ltd

Details

AGLC: Gawler v FleetPartners Group Ltd [2024] VSC 365
Case: [2024] VSC 365
Decision Date: 26 June 2024

CaseChat Overview and Summary

In the case of Gawler v FleetPartners Group Ltd, the applicant sought a group costs order under section 33ZDA of the Supreme Court Act 1986 (Vic). The application arose out of a dispute involving a group of plaintiffs who had commenced proceedings against the defendant, FleetPartners Group Ltd, in relation to alleged breaches of consumer protection laws. The applicant, Gawler, sought to recover costs incurred in bringing the group proceeding, which were to be calculated as a percentage of the amount of any award or settlement recovered.

The primary legal issue before the court was whether it should make the group costs order and, if so, whether the proposed percentage was appropriate or necessary to ensure that justice is done in the proceeding. The court considered whether the phrase ‘appropriate or necessary’ in section 33ZDA(3)(a) should be read disjunctively or conjunctively. The court also needed to determine whether the proposed percentage was appropriate or necessary to ensure that justice is done in the proceeding. The court examined the principles to be applied in exercising its discretion and whether the proposed percentage was consistent with these principles.

The court granted the application for a group costs order, finding that the proposed percentage was appropriate or necessary to ensure that justice is done in the proceeding. The court considered that the proposed percentage was consistent with the principles to be applied in exercising its discretion, and that the group proceeding had the potential to produce significant public benefit. The court found that the phrase ‘appropriate or necessary’ in section 33ZDA(3)(a) should be read conjunctively, meaning that the proposed percentage must be both appropriate and necessary. The court held that the proposed percentage was both appropriate and necessary, and that justice would be best served by granting the application.

The court made a group costs order in favour of the applicant, Gawler, with costs to be calculated as a percentage of the amount of any award or settlement recovered. The court found that the proposed percentage was appropriate or necessary to ensure that justice is done in the proceeding and that the group proceeding had the potential to produce significant public benefit. The court considered the principles to be applied in exercising its discretion and found that the proposed percentage was consistent with these principles.

Orders