FEDERAL COURT OF AUSTRALIA
Hopkins as Trustee of The David Hopkins Super Fund v Macmahon Holdings Limited [2018] FCA 2061
File number: NSD 1346 of 2015 Judge: JAGOT J Date of judgment: 12 December 2018 Date of publication of reasons: 18 December 2018 Legislation: Corporations Act 2001 (Cth) s 674(2)
Federal Court of Australia Act 1976 (Cth) ss 33V, 33ZB, 33ZF, 37AF and 37AG(1)(a)
Cases cited: Lopez v Star World Enterprises Pty Ltd [1999] FCA 104; (1999) ATPR 41-678 Date of hearing: 12 December 2018 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: No Catchwords Number of paragraphs: 14 Counsel for the Applicant: Mr WAD Edwards and Mr AH Edwards Solicitor for the Applicant: ACA Lawyers Counsel for the Respondent: Mr A Hochroth Solicitor for the Respondent: Herbert Smith Freehills ORDERS
NSD 1346 of 2015 BETWEEN: DAVID SCOTT HOPKINS (AS TRUSTEE OF THE DAVID HOPKINS SUPER FUND)
Applicant
AND: MACMAHON HOLDINGS LIMITED (ACN 007 634 406)
Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
12 DECEMBER 2018
THE COURT ORDERS THAT:
1.Pursuant to ss 37AF and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) (FCAA), until further order, in order to prevent prejudice to the proper administration of justice, the documents marked Confidential Exhibit 1 are not to be disclosed to any person or entity except to the parties, their legal representatives and the litigation funder, such permitted disclosures to be upon terms that none of those parties or persons disclose that material or any part thereof to any person or entity.
2.Pursuant to ss 37AF and 37AG(1)(a) of the FCAA, until further order, in order to prevent prejudice to the proper administration of justice:
(a)the confidential affidavit of Craig Richard Allsopp sworn on 5 December 2018 and its exhibit marked “Confidential Exhibit CRA-4”; and
(b)the document marked Confidential Exhibit 2,
(collectively, Confidential Documents) are not to be disclosed to any person or entity except to the Applicant and his legal representatives, such permitted disclosures to be upon terms that none of those persons disclose that material or any part thereof to any person or entity.
3.Leave be granted to the Applicant to rely upon the Confidential Documents without service upon the Respondent or other interested parties.
4.Pursuant to s 33V of the FCAA , the settlement of this proceeding be approved on the terms set out in:
(a)the Settlement Deed dated 2 October 2018 (Settlement Deed), which is contained in “Confidential Exhibit CRA-3” to the affidavit of Craig Richard Allsopp sworn on 18 October 2018; and
(b)the Settlement Distribution Scheme (Scheme) which is Confidential Exhibit 2.
5.Pursuant to s 33ZF of the FCAA, the Applicant is authorised, nunc pro tunc, to enter into the Settlement Deed and to give effect to the settlement and all transactions contemplated by it for and on behalf of group members.
6.All existing costs orders in the proceeding be vacated.
7.The proceeding…
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- Case
- [2018] FCA 2061
- Decision Date
CaseChat Overview and Summary
The court considered the need for confidentiality to protect the interests of the parties and the broader implications of disclosing sensitive information. The court found that the settlement was fair and in the best interest of the group members, and granted the necessary orders to approve the settlement. The court also determined that certain documents, including affidavits and exhibits, should remain confidential to prevent prejudice to the proper administration of justice. The court emphasised that the confidentiality orders were necessary to protect the interests of the parties and to ensure the integrity of the settlement process.
In granting the orders, the court approved the settlement on the terms set out in the Settlement Deed and the Settlement Distribution Scheme. The court authorised the applicant to enter into the Settlement Deed and to give effect to the settlement on behalf of the group members. The court also ordered that the proceeding be dismissed with no order as to costs and that the dismissal be a defence and absolute bar to any future claims by the applicant or any group member in relation to the matters subject of the proceeding. Finally, the court ordered that the costs paid into court be paid out to the litigation funder.
These orders ensure that the settlement is implemented in a manner that protects the interests of all parties and maintains the confidentiality of sensitive information. The dismissal of the proceeding with no order as to costs and the bar on future claims provide finality to the matter, ensuring that the parties can move forward without the risk of further litigation.
Orders
Orders of the court
1. Pursuant to ss 37AF and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) (FCAA), until further order, in order to prevent prejudice to the proper administration of justice, the documents marked Confidential Exhibit 1 are not to be disclosed to any person or entity except to the parties, their legal representatives and the litigation funder, such permitted disclosures to be upon terms that none of those parties or persons disclose that material or any part thereof to any person or entity.
2. Pursuant to ss 37AF and 37AG(1)(a) of the FCAA, until further order, in order to prevent prejudice to the proper administration of justice:
(a) the confidential affidavit of Craig Richard Allsopp sworn on 5 December 2018 and its exhibit marked “Confidential Exhibit CRA-4”; and
(b) the document marked Confidential Exhibit 2,
(collectively, Confidential Documents) are not to be disclosed to any person or entity except to the Applicant and his legal representatives, such permitted disclosures to be upon terms that none of those persons disclose that material or any part thereof to any person or entity.
3. Leave be granted to the Applicant to rely upon the Confidential Documents without service upon the Respondent or other interested parties.
4. Pursuant to s 33V of the FCAA , the settlement of this proceeding be approved on the terms set out in:
(a) the Settlement Deed dated 2 October 2018 (Settlement Deed), which is contained in “Confidential Exhibit CRA-3” to the affidavit of Craig Richard Allsopp sworn on 18 October 2018; and
(b) the Settlement Distribution Scheme (Scheme) which is Confidential Exhibit 2.
5. Pursuant to s 33ZF of the FCAA, the Applicant is authorised, nunc pro tunc, to enter into the Settlement Deed and to give effect to the settlement and all transactions contemplated by it for and on behalf of group members.
6. All existing costs orders in the proceeding be vacated.
7. The proceeding be dismissed with no order as to costs and such dismissal shall be a defence and absolute bar to any claim or proceeding by the Applicant or any group member in relation to matters the subject of the proceeding.
8. Pursuant to s 33ZB of the FCAA, the persons affected and bound by Orders 1 to 5 are the Applicant, group members (other than those who have opted out), and the Respondent and the litigation funder.
9. Pursuant to r 2.43(2) of the Federal Court Rules 2011, an order that the monies paid into Court as security for costs in this proceeding by Harbour Fund II, LP pursuant to the orders of the Court made on 5 December 2016 be paid out to Harbour Fund II, LP by the New South Wales District Registrar.
10. Leave to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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