FEDERAL COURT OF AUSTRALIA
Hadchiti v Nufarm Limited [2012] FCA 1524
Citation: Hadchiti v Nufarm Limited [2012] FCA 1524 Parties: GABY HADCHITI, VERBATT PTY LTD (ACN 116 145 834) (AS TRUSTEE FOR THE VERBATT TRUST), GRAHAM RONEY and SUSAN RONEY v NUFARM LIMITED (ACN 091 323 312) File number(s): NSD 1847 of 2010 Judge: MIDDLETON J Date of judgment: 28 November 2012 Catchwords: PRACTICE AND PROCEDURE – representative proceeding – application for Court approval of proposed settlement – whether terms of proposed settlement fair and reasonable Legislation: Federal Court of Australia Act 1976 (Cth) Cases cited: Brisbane Broncos Leagues Club Ltd v Alleasing Finance Australia Pty Ltd (No 2) [2012] FCA 1112
Hobbs Anderson Investments Pty Limited v Oz Minerals Limited [2011] FCA 801
Kirby v Centro Properties Ltd (No 6) [2012] FCA 650
Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 6) [2011] FCA 277Date of hearing: 28 November 2012 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 8 Counsel for the Applicants: Mr M.B.J. Lee SC with Mr A.D. Pound Solicitor for the Applicants: Slater & Gordon and Maurice Blackburn Pty Ltd Counsel for the Respondent: Mr L. Armstrong Solicitor for the Respondent: Arnold Bloch Leibler
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
NSD 1847 of 2010
BETWEEN: GABY HADCHITI
First ApplicantVERBATT PTY LTD (ACN 116 145 834) (AS TRUSTEE FOR THE VERBATT TRUST)
Second ApplicantGRAHAM RONEY
Third ApplicantSUSAN RONEY
Fourth ApplicantAND: NUFARM LIMITED (ACN 091 323 312)
Respondent
JUDGE:
MIDDLETON J
DATE OF ORDER:
28 NOVEMBER 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The group members identified in the List of Participating Group Members filed with the Court on 27 November 2012, pursuant to paragraph 2 of the Orders of Justice Middleton dated 23 November 2012 are deemed to have registered a claim in this proceeding and to be eligible to pursue a claim for compensation in the proposed settlement of this proceeding (Participating Group Members).
2.Paragraphs 8 and 9 of the Orders of Justice Middleton dated 11 September 2012 are otherwise confirmed.
3.Pursuant to section 33V of the Federal Court of Australia Act 1976 (Cth) (Act), the proposed settlement of these proceedings, as reflected in the:
a.Settlement Agreement (at annexure BJYP-1 of the confidential affidavit of Benjamin James Yang Phi affirmed on 27 November 2012);
b.Settlement Variation Agreement (at annexure BJYP-12 of the confidential affidavit of Benjamin James Yang Phi affirmed on 27 November 2012);
c.Settlement Distribution Scheme at annexure BJYP-3 of the confidential affidavit of Benjamin James Yang Phi affirmed on 27 November 2012; and
d.Confidential Loss Assessment Formula at annexure BJYP-3 of the confidential affidavit of Benjamin James Yang Phi affirmed on 27 November 2012.
(Settlement Documents)
be approved.
4.Pursuant to section 33ZB(a) and section 33ZF of the Act, the persons affected and bound by the settlement of the proceedings be the applicants, the respondent and the group members (as defined in the Second Further Amended Originating…
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- Case
- [2012] FCA 1524
- Decision Date
CaseChat Overview and Summary
The court examined the settlement agreement, the settlement variation agreement, the settlement distribution scheme, and the confidential loss assessment formula to determine if the settlement was in the best interests of the class members. The court found that the settlement terms were fair and reasonable, providing a practical resolution to the proceeding, and that the distribution scheme was appropriate. The court also considered the costs and disbursements associated with the proceeding and the application for approval. The court determined that the applicants were authorised to enter into the settlement on behalf of the class members and appointed Slater & Gordon and Maurice Blackburn as joint administrators of the settlement distribution scheme.
The court approved the settlement and the related distribution scheme, confirming the eligibility of the participating group members to pursue a claim for compensation. The court also ordered the costs and disbursements of the applicants and the joint administrators, as well as specific expense claims of the applicants, to be paid from the settlement sum. The court vacated previous costs orders and released the security amount to the applicants' solicitors. The court further ordered that the proceeding be re-listed for final orders, including dismissal, once the distribution of the settlement sum was completed.
Orders
Orders of the court
1. The group members identified in the List of Participating Group Members filed with the Court on 27 November 2012, pursuant to paragraph 2 of the Orders of Justice Middleton dated 23 November 2012 are deemed to have registered a claim in this proceeding and to be eligible to pursue a claim for compensation in the proposed settlement of this proceeding (Participating Group Members).
2. Paragraphs 8 and 9 of the Orders of Justice Middleton dated 11 September 2012 are otherwise confirmed.
3. Pursuant to section 33V of the Federal Court of Australia Act 1976 (Cth) (Act), the proposed settlement of these proceedings, as reflected in the:
a. Settlement Agreement (at annexure BJYP-1 of the confidential affidavit of Benjamin James Yang Phi affirmed on 27 November 2012);
b. Settlement Variation Agreement (at annexure BJYP-12 of the confidential affidavit of Benjamin James Yang Phi affirmed on 27 November 2012);
c. Settlement Distribution Scheme at annexure BJYP-3 of the confidential affidavit of Benjamin James Yang Phi affirmed on 27 November 2012; and
d. Confidential Loss Assessment Formula at annexure BJYP-3 of the confidential affidavit of Benjamin James Yang Phi affirmed on 27 November 2012.
(Settlement Documents)
be approved.
4. Pursuant to section 33ZB(a) and section 33ZF of the Act, the persons affected and bound by the settlement of the proceedings be the applicants, the respondent and the group members (as defined in the Second Further Amended Originating Application).
5. The applicants be authorised nunc pro tunc on behalf of group members to enter into and give effect to the Settlement Documents and the transactions thereby contemplated for and on behalf of those group members.
6. Pursuant to section 33ZF of the Act, Slater & Gordon and Maurice Blackburn be appointed Joint Administrators of the Settlement Distribution Scheme and to act in accordance with the rules of Settlement Distribution Scheme.
7. Pursuant to section 33ZF of the Act, the costs and disbursements of the applicants in conducting the proceedings and of obtaining settlement approval be approved in the amount referred to in the report of Ian Ramsey-Stewart, cost assessor, annexed to the affidavit of Ian Ramsey-Stewart affirmed on 27 November 2012.
8. That subject to further order, pursuant to section 50 of the Act, the following evidence be made confidential, forbidden from publication, and be sealed on the Court file in envelopes marked “Not to be opened except by leave of the Court or a Judge”:
a. the affidavit of Benjamin James Yang Phi affirmed on 27 November 2012 and its annexures;
b. annexure JAG-1 to the affidavit of Jason Andrew Geisker sworn on 27 November 2012;
c. the affidavit of Oscar Louis McLaren affirmed on 27 November 2012 and its annexures;
d. the affidavit of Ian Ramsey-Stewart affirmed on 27 November 2012 and its annexures.
9. The costs and disbursements of Slater & Gordon and Maurice Blackburn in acting as Joint Administrators of the Settlement Distribution Scheme be the subject of a further report to be filed by Ian Ramsey-Stewart, cost assessor, and the amount the subject of that report be approved subject to any party or the Court requiring that the matter be mentioned before the Court.
10. That pursuant to section 33ZF of the Act, the amount of:
a. $6,297.50 be approved as the amount of the “First Applicant’s Expense Claim” for the purpose of the Settlement Distribution Scheme;
b. $7,392.00 be approved as the amount of the “Second Applicant’s Expense Claim” for the purpose of the Settlement Distribution Scheme;
c. $1,530.00 be approved as the amount of the “Third Applicant’s Expense Claim” for the purpose of the Settlement Distribution Scheme;
d. $285.00 be approved as the amount of the “Fourth Applicant’s Expense Claim” for the purpose of the Settlement Distribution Scheme
11. Slater & Gordon and Maurice Blackburn have liberty to apply for directions in connection with the Settlement Distribution Scheme.
12. All costs orders made to date in the proceedings be vacated.
13. The amount of $300,000 lodged as security in the proceeding be released to the applicants’ solicitors.
14. There be no order as to the costs of the proceeding.
15. The applicants to re-list the proceeding as soon as practicable after the completion of distribution of the Settlement Sum within the meaning of the Settlement Distribution Scheme so that final orders can be made, including orders that the proceeding be dismissed.
16. Any such other order as the Court sees fit.
17. Liberty to apply on two days’ notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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