Lee v Westpac Banking Corporation

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FEDERAL COURT OF AUSTRALIA

Lee v Westpac Banking Corporation [2017] FCA 1553

File number(s): QUD 211 of 2013
Judge(s): DERRINGTON J
Date of judgment: 15 December 2017
Catchwords:

PRACTICE AND PROCEDURE – Approval of settlement by the Court pursuant to s 33V Federal Court of Australia Act 1976 (Cth) – Proper approach to approval of settlement – whether terms of settlement “fair and reasonable”

PRACTICE AND PROCEDURE – Approval of settlement by the Court pursuant to s 33V Federal Court of Australia Act 1976 (Cth) – approval of applicant’s costs of prosecuting the class action claim – where applicant filed affidavit by costs assessor in support of application – timeframe within which material should be filed considered

Legislation: Federal Court Act 1976 (Cth), ss 33V, 33X, 33Z, 33ZF
Cases cited:

Darwalla Milling Company Pty Ltd v F Hoffman-La Roche Limited (No 2) (2006) 236 ALR 322

Stanford v DePuy International Ltd (No 6) [2016] FCA 1452

Williams v FAI Home Security Pty Ltd (No.4) (2000) 180 ALR 459

Date of hearing: 15 December 2017
Registry: Queensland
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Commercial Contracts, Banking, Finance and Insurance
Category: Catchwords
Number of paragraphs: 41
Counsel for the Applicants: Mr D Campbell QC
Solicitor for the Applicants: Levitt Robinson
Counsel for the Respondent: Mr P Jopling QC
Solicitor for the Respondent: King & Wood Mallesons

ORDERS

QUD 211 of 2013
BETWEEN:

JOHN CHARLES LEE

First Applicant

GLENDA MARION LEE

Second Applicant

AND:

WESTPAC BANKING CORPORATION (ABN 33 007 457 141)

Respondent

JUDGE:

DERRINGTON J

DATE OF ORDER:

15 DECEMBER 2017

THE COURT NOTES THAT:

1.In these orders the following terms are defined as follows: 

(a)“Administration Costs” has the same meaning as it does in the Settlement Scheme;

(b)“Class Action Costs” means the costs paid to date, the unbilled costs and the unpaid costs as each of those terms are defined in the Settlement Scheme;

(c)“Group Members” means the persons described in paragraph 2 of the Further Amended Statement of Claim, other than any such persons who have opted out of the proceedings;

(d)“Settlement Deed” means the Deed of Settlement executed on 18 October 2017 which is confidential Exhibit BRI-A to the affidavit of Mr Brett Imlay filed 19 October 2017; and

(e)“Settlement Scheme” means the final version of the draft document which forms part of Confidential Exhibit BRI-A to the affidavit of Mr Brett Imlay filed 19 October 2017.

2.Schedule 1 of this order is marked “Confidential” and is not to be made available for inspection by any person unless otherwise ordered by the Court.

THE COURT ORDERS THAT:

1.Pursuant to sections 33V and 33ZF of the Federal Court of Australia Act 1976 (Cth) the settlement of this proceeding be approved on the terms set out in:

(a)The Settlement Scheme (as amended in the terms set out in confidential schedule 1 to these orders); and

(b)the Settlement Deed.

2.Stewart Alan Levitt be appointed as administrator of the Settlement Scheme.

3.Pursuant to s 33ZF of the Federal Court…

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Details
Case
[2017] FCA 1553
Decision Date

CaseChat Overview and Summary

The matter of Lee v Westpac Banking Corporation was before the court, which had to decide on the approval of a settlement in a class action case. The court needed to determine if the settlement terms were fair and reasonable, as well as assess the applicant's costs for prosecuting the claim. The applicant had filed an affidavit by a costs assessor in support of the application. The court also considered the timeframe within which material should have been filed.

The court reviewed the legal principles governing the approval of settlements and the assessment of costs. It considered the terms of the settlement, the affidavit of the costs assessor, and other submissions made by the parties. The court found that the settlement was fair and reasonable and approved the settlement terms as set out in the Settlement Scheme and the Settlement Deed. The court also approved the applicant's costs for prosecuting the claim, including the costs paid to date, unbilled and unpaid costs and disbursements, and unbilled and unpaid approval costs. The court further appointed Stewart Alan Levitt as the administrator of the Settlement Scheme and ordered that only registered group members would be entitled to participate in the settlement.

The court made several orders in relation to the settlement and the costs. It approved the settlement on the terms set out in the Settlement Scheme and the Settlement Deed, appointed Stewart Alan Levitt as the administrator of the Settlement Scheme, and authorised the applicant to enter into and give effect to the Settlement Deed and the transactions contemplated by it on behalf of the group members. The court also dismissed the whole of the proceeding, stayed the order until the administration of the Settlement Scheme was complete, vacated any orders relating to costs previously made in the proceedings, and ordered that each party bear its own costs. The court approved the class action costs and the administration costs, and ordered that certain documents be placed in a sealed envelope and marked "Confidential."

Orders

Orders of the court

1. Pursuant to sections 33V and 33ZF of the Federal Court of Australia Act 1976 (Cth) the settlement of this proceeding be approved on the terms set out in:

(a) The Settlement Scheme (as amended in the terms set out in confidential schedule 1 to these orders); and

(b) the Settlement Deed.

2. Stewart Alan Levitt be appointed as administrator of the Settlement Scheme.

3. Pursuant to s 33ZF of the Federal Court of Australia Act 1976 (Cth) or otherwise, the Applicant be authorised nunc pro tunc on behalf of the Group Members, to enter into and to give effect to the Settlement Deed and the transactions contemplated thereby for and on behalf of those Group members.

4. Pursuant to s 33ZF of the Federal Court of Australia Act 1976 (Cth) or otherwise, only Group Members who have registered under the Settlement Scheme will be entitled to participate in the Settlement Scheme.

5. The whole of the proceeding be dismissed, such order to be stayed until the administration of the Settlement Scheme is complete.

6. Any orders relating to costs previously made in the proceedings be vacated.

7. Each party to bear its own costs.

8. Pursuant to s 33V(2) of the Federal Court of Australia Act 1976 (Cth) or otherwise:

(a) the Class Action Costs be approved as follows:

(i) costs paid to date of $393,731.04;

(ii) unbilled and unpaid costs and disbursements up to 18 October 2017 in the sum of $1,669,818.81;

(iii) unbilled and unpaid approval costs up to and including 15 December 2017 in the sum of $182,321.48;

(b) the Administration Costs be approved up to the amount of $200,942.00.

9. The following documents are to be placed in a sealed envelope and marked “Confidential” and are not to be made available for inspection by any person unless otherwise ordered by the Court:

(a) Schedule to the Order of Justice Derrington dated 15 December 2017;

(b) Confidential submissions of Mr Jopling QC;

(c) Confidential opinion of Mr Douglas Campbell QC;

(d) Affidavit of Mr Brett Imlay dated 14 December 2017; and

(e) Exhibit BRI-A to the affidavit of Mr Brett Imlay filed 19 October 2017.

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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