Guglielmin v Trescowthick (No 5)

FEDERAL COURT OF AUSTRALIA

Guglielmin v Trescowthick (No 5) [2006] FCA 1385

ELEANOR GUGLIELMIN v ADAM JOHN TRESCOWTHICK, JOHN MAURICE PATTEN, ROSS GRAHAM OAKLEY, ROBERT DAVID MATTINGLY, ROGER ANDREW CURTIS AND MARK CHARLES TRESCOWTHICK

SAD 153 OF 2002

MANSFIELD J
12 OCTOBER 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 153 OF 2002

BETWEEN:

ELEANOR GUGLIELMIN
Applicant

AND:

ADAM JOHN TRESCOWTHICK
First Respondent

JOHN MAURICE PATTEN
Second Respondent

ROSS GRAHAM OAKLEY
Third Respondent

ROBERT DAVID MATTINGLY
Fourth Respondent

ROGER ANDREW CURTIS
Fifth Respondent

MARK CHARLES TRESCOWTHICK
Sixth Respondent

JUDGE:	MANSFIELD  J
DATE OF ORDER:	12 OCTOBER 2006
WHERE MADE:	ADELAIDE

THE COURT NOTES THAT:
The following undertakings have been given by senior counsel for the applicant on behalf of the applicant:

1.        That the applicant will file and serve a further affidavit of Peter John Humphries:

(a)confirming the explanation for the apparent discrepancy in the figure for file administration fees in the letter of T N Cogan and Co dated 19 September 2006 and which is Exhibit PJH-13 to his affidavit, and as to the proper foundation for the administration fee;

(b)listing the persons who have opted out of the proceeding, and separately the 26 persons correspondence to whom has been returned unclaimed and who, it is agreed by the parties, should be treated in that circumstance as having opted out of the proposed settlement;

2.That the solicitors for the applicant will write within 7 days of the entry of this order to Stella Stitz and to Graeme Manfred Hall at the addresses given in their respective notices of opting out dated 6 October 2006 and 4 October 2006, enclosing a copy of the orders made today and indicating that subject to any further application by them in accordance with Order 10 hereof they will each be regarded as Participating Group Members under the terms of the Deed of Settlement.

Upon those undertakings:
THE COURT ORDERS THAT:

3.Pursuant to Section 33V of the Federal Court of Australia Act 1976 (Cth) (‘the Act’) the Court approves the terms of the Deed of Settlement marked PJH15 exhibited to the affidavit of Peter John Humphries sworn 10 October 2006, but as amended by deleting from clause 10.3 the words ‘Upon approval of the settlement’ and by substituting in their place the words ‘Upon transfer of the Settlement Payment as provided for in clause 4.4 of this Deed’ (‘the Deed of Settlement’).

4.Upon the execution for and on behalf of the Applicant, the Deed of Settlement shall bind the Group Members.

5.        For the purpose of this order:

5.1The group members who will be affected by this order are those persons who fall within the description of group members as described in paragraph 2 of the Second Amended Application filed on 15 July 2005, other than the persons who are named in the further affidavit of Peter John Humphries to be filed in accordance with the undertaking given today and who have, or are to be treated as having,…