FEDERAL COURT OF AUSTRALIA
Kirby v Centro Properties Limited (No 6) [2012] FCA 650
Citation: Kirby v Centro Properties Limited (No 6) [2012] FCA 650 Parties: RICHARD KIRBY v CENTRO PROPERTIES LIMITED (ACN 078 590 682), CPT MANAGER LIMITED (ACN 054 494 307), PRICEWATERHOUSECOOPERS and CENTRO RETAIL AUSTRALIA LIMITED (ACN 149 781 322)
RICHARD KIRBY v CENTRO RETAIL LIMITED (ACN 114 757 783), CENTRO MCS MANAGER LIMITED (ACN 051 908 984), PRICEWATERHOUSECOOPERS and CENTRO RETAIL AUSTRALIA LIMITED (ACN 149 781 322)
NICHOLAS VLACHOS, MONATEX PTY LTD (ACN 077 729 830) and RAMON FRANCO v CENTRO PROPERTIES LIMITED (ACN 078 590 682), CPT MANAGER LIMITED (ACN 054 494 307), CENTRO RETAIL LIMITED (ACN 114 757 783) and CENTRO MCS MANAGER LIMITED (ACN 051 908 984)
NICHOLAS STOTT v PRICEWATERHOUSECOOPERS SECURITIES LIMITED (ACN 003 111 617)
NICHOLAS VLACHOS, MONATEX PTY LTD AND RAMON FRANCO v PRICEWATERHOUSECOOPERS
File number(s): VID 326 of 2008
VID 327 of 2008
VID 366 of 2008
VID 1028 of 2010
VID 1041 of 2010Judge: MIDDLETON J Date of judgment: 19 June 2012 Catchwords: PRACTICE AND PROCEDURE – representative proceeding under Federal Court of Australia Act 1976 (Cth) ss 33V and 33ZF – Court approval of settlement – fairness and reasonableness of terms of settlement – global settlement – assessment of reasonableness of legal fees – public interest in facilitation of fair and reasonable settlements Legislation: Federal Court of Australia Act 1976 (Cth) Date of hearing: 19 June 2012 Place: Melbourne Division: GENERAL DIVISION Number of paragraphs: 17 Counsel for the Applicant
(Kirby / Stott):Mr MBJ Lee SC with Mr WAD Edwards Solicitor for the Applicant (Kirby / Stott): Maurice Blackburn Counsel for the Applicant (Vlachos): Mr J Burnside QC with Ms RL Enbom Solicitor for the Applicant (Vlachos): Slater & Gordon Counsel for Centro Properties Limited & CPT Manager Limited : Mr JBR Beach QC with Mr M Garner Solicitor for Centro Properties Limited & CPT Manager Limited: Freehills Counsel for Centro Retail Limited, Centro MCS Manager Limited & Centro Corporate Services: Mr P Jopling QC with Mr P Wallis Solicitor for Centro Retail Limited, Centro MCS Manager Limited & Centro Corporate Services: Middletons Counsel for PricewaterhouseCoopers & PricewaterhouseCoopers Securities Limited: Mr RG McHugh SC Solicitor for PricewaterhouseCoopers & PricewaterhouseCoopers Securities Limited: King & Wood Mallesons Counsel for Centro Retail Australia: Mr NJ O’Bryan SC with Mr HNG Austin Solicitor for Centro Retail Australia:: Lander & Rogers Counsel for non-executive directors: Mr N De Young Solicitor for non-executive directors: Gadens Lawyers Counsel for Mr Scott: Mr A Joseph Solicitor for Mr Scott: Strongman & Crouch Counsel for Mr Nenna: Mr A Schnaider Solicitor for Mr Nenna: Schetzer Brott & Appel
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 326 of 2008
BETWEEN: RICHARD KIRBY
ApplicantAND: CENTRO PROPERTIES LIMITED (ACN 078 590 682)
First RespondentCPT MANAGER LIMITED (ACN 054 494 307)
Second RespondentPRICEWATERHOUSECOOPERS
Third RespondentCENTRO RETAIL AUSTRALIA LIMITED (ACN 149 781 322)
Fourth Respondent
JUDGE:
MIDDLETON J
DATE OF…
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- Case
- [2012] FCA 650
- Decision Date
CaseChat Overview and Summary
The court examined the terms of the settlement, the fairness of the compensation offered, and the reasonableness of the legal fees. It considered the public interest in facilitating fair and reasonable settlements and ensuring that the parties' rights were adequately protected. The court also assessed the proposed distribution scheme for compensating affected group members. The court determined that the settlement terms were fair and reasonable, and that the legal fees were justified given the complexity and scale of the litigation. It approved the settlement and authorised the applicants to act on behalf of the group members in executing the settlement agreement.
In its orders, the court approved the settlement on the terms outlined in the Deed of Settlement and the Settlement Distribution Scheme. It made the relevant affidavits and annexures confidential and sealed them on the court file. The court also approved the applicants' costs for the settlement distribution scheme and authorised the applicants to act on behalf of the group members. It vacated all previous costs orders and dismissed the proceedings with an absolute bar against any future claims arising from the same matters.
Orders
Orders of the court
1. Pursuant to sections 33V and 33ZF of the Federal Court of Australia Act 1976 (Cth) (‘the Act’), the settlement of proceedings VID 326 of 2008, VID 327 of 2008 and VID 1028 of 2010 between the applicants and the respondents (‘Proceedings’), be approved on the terms:
(a) set out in the Deed of Settlement executed by the parties to the proceedings, IMF (Australia) Limited and Maurice Blackburn Limited on 17 May 2012 being Annexure MJH-1 to the Affidavit of Martin Hyde in relation to Settlement Approval sworn on 8 June 2012; and
(b) set out in the Settlement Distribution Scheme dated 4 June 2012 being Annexure MJH-5 to the Affidavit of Martin Hyde in relation to Settlement Approval sworn on 8 June 2012 and the Confidential Schedule A Loss Assessment Formula being Annexure MJH-6 to the Confidential Affidavit of Martin Hyde sworn in relation to Settlement Approval sworn on 8 June 2012.
2. Pursuant to section 50 of the Act:
(a) the Confidential Affidavit of Martin Hyde in relation to Settlement Approval sworn on 8 June 2012 and the annexures thereto; and
(b) the Second Confidential Affidavit of Martin Hyde sworn on [12] June 2012 annexing the confidential opinion of Counsel instructed by the applicants,
be made 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”.
3. Pursuant to section 33ZF of the Act, the amount of $21.1 million be approved as the amount of the applicants’ Costs for the purposes of the Settlement Distribution Scheme.
4. Pursuant to section 33ZF of the Act or otherwise, the Court authorises the applicants nunc pro tunc on behalf of the group members as defined in paragraph 1 of the respective Statements of Claim filed in the Proceedings (‘Group Members’) to enter into and to give effect to the Deed of Settlement and the transactions contemplated thereby for and on behalf of those Group Members.
5. All costs orders made to date in the Proceedings (including orders reserving costs) be vacated.
6. The Proceedings (including any cross claims) be otherwise dismissed on the basis that the dismissal is a defence and absolute bar to any claim or proceeding by any applicant and/or any Kirby or Stott Group Member in respect of matters arising out of or related to the Proceedings (including any cross-claims).
7. Pursuant to section 33ZB and section 33ZF of the Act, the persons affected and bound by orders 1 to 6 are the applicants, the respondents and the Kirby and Stott Group Members as defined in the Deed of Settlement being MJH-1 to the Affidavit of Martin Hyde sworn on 8 June 2012.
8. There be no order as to costs of the Proceedings (including any-cross claims).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1. Pursuant to section 33V of the Federal Court of Australia Act 1976 (‘the Act’), that the proposed settlement of these proceedings, as reflected in the Deed of Settlement (Tab 1 of Exhibit JH-1 to the Affidavit of James Higgins sworn on 13 June 2012), be approved.
2. Pursuant to paragraph 33ZB(a) and/or section 33ZF of the Act, the persons affected and bound by the settlement of the proceedings be the Applicants, the Respondents and the group members who are Vlachos Group Members as defined in the Deed of Settlement.
3. Pursuant to section 33ZF of the Act, the Applicants be authorised nunc pro tunc on behalf of the Vlachos Group Members to enter into and give effect to the Deed of Settlement executed by the parties in the proceedings and the transactions thereby contemplated for an on behalf of the Vlachos Group Members.
4. Pursuant to section 33ZF of the Act, Slater & Gordon be appointed Administrator of a Distribution Scheme and to act in accordance with the rules of said Distribution Scheme as exhibited to the open affidavit of James Higgins dated 8 June 2012
5. The reasonable costs and disbursements of the Applicants in conducting the proceedings be approved in an amount of $10.06 million.
6. The costs and disbursements of the applicants in obtaining approval of the settlement be the subject of a further report to be filed by Paul Linsdell, 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.
7. The costs and disbursements of Slater & Gordon in acting as Administrator of the Distribution Scheme be the subject of a further report to be filed by Paul Linsdell, 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.
8. Slater & Gordon have liberty to apply for directions in connection with the Distribution Scheme.
9. All costs orders made to date in the proceedings be vacated.
10. There be no order as to the costs of the proceedings (including any cross claims).
11. The Confidential Affidavit of James Higgins made on 13 June 2012, together with its exhibit, be sealed on the Court file pursuant to section 50 of the Act and marked not to be opened other than pursuant to an order of a Judge upon 3 days notice to the solicitors for the Applicants.
12. The claims in the Proceedings (including any cross-claims) are dismissed, on the basis that the dismissal is a defence and absolute bar to any claim or proceeding by any applicant and/or any Vlachos Group Member in respect of matters arising out of or related to the Proceedings (including any cross-claims).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1. Pursuant to sections 33V and 33ZF of the Federal Court of Australia Act 1976 (Cth) (‘the Act’), the settlement of proceedings VID 326 of 2008, VID 327 of 2008 and VID 1028 of 2010 between the applicants and the respondents (Proceedings), be approved on the terms:
(a) set out in the Deed of Settlement executed by the parties to the proceedings, IMF (Australia) Limited and Maurice Blackburn Limited on 17 May 2012 being Annexure MJH-1 to the Affidavit of Martin Hyde in relation to Settlement Approval sworn on 8 June 2012; and
(b) set out in the Settlement Distribution Scheme dated 4 June 2012 being Annexure MJH-5 to the Affidavit of Martin Hyde in relation to Settlement Approval sworn on 8 June 2012 and the Confidential Schedule A Loss Assessment Formula being Annexure MJH-6 to the Confidential Affidavit of Martin Hyde sworn in relation to Settlement Approval sworn on 8 June 2012.
2. Pursuant to section 50 of the Act:
(a) the Confidential Affidavit of Martin Hyde in relation to Settlement Approval sworn on 8 June 2012 and the annexures thereto; and
(b) the Second Confidential Affidavit of Martin Hyde sworn on [12] June 2012 annexing the confidential opinion of Counsel instructed by the applicants,
be made 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”.
3. Pursuant to section 33ZF of the Act, the amount of $21.1 million be approved as the amount of the applicants’ Costs for the purposes of the Settlement Distribution Scheme.
4. Pursuant to section 33ZF of the Act or otherwise, the Court authorises the applicants nunc pro tunc on behalf of the group members as defined in paragraph 1 of the respective Statements of Claim filed in the Proceedings (‘Group Members’) to enter into and to give effect to the Deed of Settlement and the transactions contemplated thereby for and on behalf of those Group Members.
5. All costs orders made to date in the Proceedings (including orders reserving costs) be vacated.
6. The Proceedings (including any cross claims) be otherwise dismissed on the basis that the dismissal is a defence and absolute bar to any claim or proceeding by any applicant and/or any Kirby or Stott Group Member in respect of matters arising out of or related to the Proceedings (including any cross-claims).
7. Pursuant to section 33ZB and section 33ZF of the Act, the persons affected and bound by orders 1 to 6 are the applicants, the respondents and the Kirby and Stott Group Members as defined in the Deed of Settlement being MJH-1 to the Affidavit of Martin Hyde sworn on 8 June 2012.
8. There be no order as to costs of the Proceedings (including any-cross claims).
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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