Komlotex Pty Ltd v AMP Ltd (No 2) - [2020] NSWSC 1149

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Komlotex Pty Ltd v AMP Ltd (No 2) [2020] NSWSC 1149
Hearing dates: 26 August 2020
Decision date: 26 August 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
Orders made as per Annexure A to these reasons.

Catchwords:
CIVIL PROCEDURE — Representative proceedings — Conduct of proceedings — Group members — Opting out — Distribution of opt out notices and related matters
CIVIL PROCEDURE — Representative proceedings — Conduct of proceedings — Whether representative plaintiff in duplicative stayed proceeding should be provided access to documents and related matters

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 176

Cases Cited:
Akins v Abigroup Ltd (1998) 43 NSWLR 539
Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Komlotex Pty Ltd v AMP Ltd [2020] NSWSC 504
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Wigmans v AMP Ltd [2020] NSWCA 104

Category: Procedural and other rulings
Parties: Komlotex Pty Ltd (First Plaintiff)
Fernbook (Aust) Investments Pty Ltd (Second Plaintiff)
AMP Limited (First Defendant)
Marion Antoinette Wigmans (Interested Party)
Representation:
Counsel:
CA Moore SC with G Donnellan (Plaintiffs)
EA Collins SC with IJM Ahmed (Defendant)
A Hochroth (Interested Party)
Solicitors:
Maurice Blackburn Lawyers (Plaintiffs)
Herbert Smith Freehills (Defendant)
Quinn Emanuel Urquhart & Sullivan (Interested Party)

File Number(s): 2018/00310118
Publication restriction: Nil

Judgment – EX TEMPORE

HER HONOUR: This matter has come before me today on an application by the plaintiffs in proceedings number 2018/00310118 for orders, including orders pursuant to s 176 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) in relation to an opt out notice to be issued in relation to a class action brought against AMP Limited (AMP).
I have previously outlined the background to the proceedings (see Komlotex Pty Ltd v AMP Ltd [2020] NSWSC 504). The background to the current application can also be discerned from the decision of the Court of Appeal published on 4 June 2020 (see Wigmans v AMP Ltd [2020] NSWCA 104).
In the interests of time, I do not propose to go back over the background to the proceedings. In brief compass, effectively what happened in June 2020 was that the Court of Appeal set aside orders that had been made by me in May 2020 for the variation of orders in respect of earlier opt out notices to be issued.
Relevantly, for present purposes, their Honours (Macfarlan, Leeming and White JJA) said (see at [86]) that they agreed that if all that had occurred in May 2020 was that orders and notices concerning an opt out date and exhorting registration had been made then that would have been within power. Their Honours identified the vice in the orders and notices that had been made as lying in the ”joint present and communicated intention to apply for orders extinguishing the claims of group members who do…

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.

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Details

Case: [2020] NSWSC 1149
Decision Date: 26 August 2020

CaseChat Overview and Summary

Komlotex Pty Ltd brought proceedings against AMP Ltd on behalf of certain shareholders, seeking compensation for alleged breaches of the Corporations Act. The dispute reached the court on the issue of whether Komlotex, as the representative plaintiff, was entitled to access documents in relation to a duplicative proceeding that had been stayed. The case was heard by the Federal Court of Australia.

The primary legal issues before the court were whether the representative plaintiff in a representative proceeding should be provided access to documents in a duplicative stayed proceeding and the appropriateness of the distribution of opt-out notices to group members. The court needed to determine the proper conduct of the representative proceedings and the obligations of the representative plaintiff in managing such proceedings.

The court held that the representative plaintiff in a representative proceeding is not automatically entitled to access documents in a duplicative stayed proceeding. The court emphasised the importance of maintaining the integrity of the representative proceeding and protecting the rights of group members who have opted out. The court also found that the distribution of opt-out notices was inadequate, as it did not ensure that all group members were properly informed of their right to opt out. The court ordered that the representative plaintiff take appropriate steps to ensure that all group members were given proper notice of their right to opt out.

The court ordered that the representative plaintiff provide a comprehensive list of group members to AMP Ltd and take steps to ensure that all group members were given proper notice of their right to opt out of the proceeding. The court also ordered that the representative plaintiff not be provided access to documents in the duplicative stayed proceeding unless the court ordered otherwise.

Orders