FEDERAL COURT OF AUSTRALIA
Kraft v BPR Audit Pty Ltd [2025] FCA 422
File number: NSD 999 of 2023 Judgment of: MARKOVIC J Date of judgment: 1 April 2025 Date of publication of reasons: 1 May 2025 Catchwords: REPRESENTATIVE PROCEEDINGS – application for approval of conditional settlement and distribution of funds under that settlement pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) – whether conditional settlement is fair and reasonable in the interests of group members as a whole – settlement approved Legislation: Federal Court of Australia Act 1976 (Cth) s 33V Cases cited: Camilleri v The Trust Company (Nominees) Ltd [2015] FCA 1468
Davis v Quintis Limited (Subject to Deed of Company Arrangement) [2022] FCA 806
Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 22 Date of hearing: 1 April 2025 Counsel for the Applicants: Mr A Harding SC and Mr T Kane Solicitor for the Applicants: Mackay Chapman Solicitor for the First Respondent: Mr J Hunt of Lander & Rogers Solicitor for the Second Respondent: Ms C Wang of Accuro Maxwell Counsel for the Third and Fourth Respondents: Mr S A Lawrence SC and Ms M Kearney Solicitor for the Third and Fourth Respondents: Colin Biggers & Paisley Counsel for the Fifth Respondent: Mr J Entwisle Solicitor for the Fifth Respondent: DWF Law ORDERS
NSD 999 of 2023 BETWEEN: MS AUDREY LILIAN KRAFT
First Applicant
JON-AN PROPERTIES PTY LTD (ACN 002 166 378) ATF THE JON-AN SUPERANNUATION FUND
Second Applicant
AND: BPR AUDIT PTY LTD
First Respondent
GK & CO NO.1 PTY. LIMITED (ACN 109 445 892)
Second Respondent
BLADENS ACCOUNTANTS & TAX AGENTS PTY LTD (ACN 132 166 815) (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
MARKOVIC J
DATE OF ORDER:
1 APRIL 2025
In these orders: “Redactions to the Confidential Chapman Affidavit” means the following paragraphs of the Confidential Chapman Affidavit: 12-14, 18 (dollar figures only), 20 (dollar figures only), 22-24, 26 (second sentence only), 27-37, 39-44.
In these orders, “Enduring Redactions to the Affidavit of Louise Hird” means those redactions marked “Enduring Confidential” at Annexure LAH-3 of the Hird Affidavit.
In these orders, “Non-Enduring Redactions to the Affidavit of Louise Hird” means those redactions marked “Non-enduring Confidential” at the following paragraphs of the Hird Affidavit: 16(a) (dollar figure only), 34 (dollar figures only), 40 (percentages only) and 41 (dollar figure and part of second sentence), and at Annexure LAH-1.
THE COURT ORDERS THAT:
Confidentiality
1.Pursuant to s 37AF and s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), on the ground that the order is necessary to prevent prejudice to the proper administration of justice, for a period of…
Continue reading Kraft v BPR Audit Pty Ltd
Sign in free to access the full text
- AGLC
- Kraft v BPR Audit Pty Ltd [2025] FCA 422
- Case
- [2025] FCA 422
- Decision Date
CaseChat Overview and Summary
The court found that the evidence demonstrated that Mackay Chapman, the firm tasked with administering the distribution of settlement amounts, was capable and well-positioned to handle the distribution in a cost-efficient manner. This conclusion was based on the detailed affidavits and submissions presented by the applicants. The court approved the conditional settlement and the distribution of funds as proposed in the Settlement Deed, ensuring that the interests of all group members were adequately protected. The court also made orders for the confidentiality of certain documents to prevent prejudice to the proper administration of justice and authorised the applicants to enter into the settlement deed on behalf of all group members.
The final orders included the approval of the settlement, the distribution of settlement funds according to the terms of the settlement deed, and the reimbursement of certain costs. Additionally, the court made orders for the confidentiality of specific documents and released certain funds to one of the parties involved. The proceeding was dismissed with no order as to costs, and liberty to apply was granted. The orders ensured that the settlement was implemented in a manner that was fair and reasonable for all parties involved.
Orders
Orders of the court
Confidentiality
1. Pursuant to s 37AF and s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), on the ground that the order is necessary to prevent prejudice to the proper administration of justice, for a period of 10 years from the date of these Orders, the annexure marked “Confidential Exhibit MRC-2” to the Confidential Affidavit of Michael Rowallan Chapman sworn 14 February 2025 (Confidential Chapman Affidavit) (being pages 13 to 32 of that affidavit) is confidential and not to be published or made available to any person other than:
(a) the Court;
(b) the applicants and their legal representatives; and
(c) Therium Litigation Finance Atlas AF IC and its legal representatives.
2. Pursuant to s 37AF and s 37AG(1)(a) of the Act, on the ground that the order is necessary to prevent prejudice to the proper administration of justice, until a date that is 21 days from the date on which the Court determines the Applicants’ Interlocutory Application dated 29 January 2025, the Redactions to the Confidential Chapman Affidavit listed in these Orders, and the annexure marked “Confidential Exhibit MRC-3” to that affidavit (at pages 33 to 147 of that affidavit), are confidential and not to be published or made available to any person other than:
(a) the Court;
(b) the applicants and their legal representatives; and
(c) Therium and its legal representatives.
3. Pursuant to s 37AF and s 37AG(1)(a) of the Act on the ground that the order is necessary to prevent prejudice to the proper administration of justice, for a period of 10 years from the date of these Orders, the Enduring Redactions to the Affidavit of Louise Hird sworn 20 February 2025 (Hird Affidavit) are confidential and not to be published or made available to any person other than:
(a) the Court;
(b) the applicants and their legal representatives; and
(c) Therium and its legal representatives.
4. Pursuant to s 37AF and s 37AG(1)(a) of the Act, on the ground that the order is necessary to prevent prejudice to the proper administration of justice, until a date that is 21 days from the date on which the Court determines the Applicants’ Interlocutory Application, the Non-Enduring Redactions to the Hird Affidavit listed in these Orders are confidential and not to be published or made available to any person other than:
(a) the Court;
(b) the Applicants and their legal representatives; and
(c) Therium and its legal representatives.
Settlement approval
5. Pursuant to s 33V of the Act, the settlement of the representative proceeding brought by the applicants against the first, second, third, fourth and fifth respondents be approved upon the terms set out in the Deed of Settlement and Release entered into between the applicants, Anne Wilson, Therium, the first respondent, the second respondent, the third respondent, the fourth respondent, the fifth respondent and Geik Kim Lim (Settlement Deed).
6. Pursuant to s 33ZF of the Act, the applicants are authorised, nunc pro tunc, to enter into and give effect to the Settlement Deed and all transactions contemplated by it for and on behalf of all Group Members.
7. Pursuant to s 33ZB of the Act, the persons affected and bound by judgment given in this proceeding are:
(a) the applicants;
(b) Ms Wilson and all other Group Members as defined in paragraph 1 of the further amended statement of claim filed 9 December 2024;
(c) the first, second, third, fourth and fifth respondents;
(d) Geik Kim Lim; and
(e) Therium.
Distribution of Settlement Sums
8. The Settlement Sums provided for in the Settlement Deed (in aggregate, the Total Settlement Sum) and held in an interest-bearing controlled monies account operated by the applicants’ solicitors, Mackay Chapman, be held on trust for the applicants, Group Members and Therium on the terms provided for in the Settlement Deed.
9. Pursuant to s 33V(2) of the Act, the Court makes the following orders with respect to the distribution of the Total Settlement Sum:
(a) reimbursement be made from the Total Settlement Sum to Therium in the following amounts:
(i) legal costs paid by Therium to date in the sum of $828,746.52; and
(ii) after the event insurance contingent premium of $132,000;
(b) deductions be made from the Total Settlement Sum and paid as follows:
(i) to Mackay Chapman in respect of unpaid legal fees and uplift in the sum of $171,100.66;
(ii) to Mackay Chapman in respect of settlement approval and distribution costs up to the sum of $127,700;
(iii) to the lead applicants as nominal payment in recompense for the assistance provided in the sum of $10,000 each;
(iv) to Therium in respect of its funding commission in the amount of $492,952.82;
(c) the remaining balance of the Total Settlement Sum be administered in accordance with the proposal set out in paragraphs 40 and 45 of the open affidavit of Michael Rowallan Chapman sworn 14 February 2025.
Dismissal and costs
10. Any extant costs orders be vacated.
11. The Court release to Therium the $60,000 paid into Court by Therium on behalf of the applicants in accordance with Orders 5 and 6 of the Orders made on 28 February 2024.
12. Other than as provided for in these Orders, the proceeding be dismissed with no order as to costs (to the intent and effect that each party pay their own costs).
13. Liberty to apply on three days’ notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.