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Lieberman v Crown Resorts Ltd

Lieberman v Crown Resorts Ltd

Case [2022] VSC 787 16 December 2022

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IN THE SUPREME COURT OF VICTORIA Not Restricted
AT MELBOURNE
COMMERCIAL COURT
GROUP PROCEEDINGS LIST
S ECI 2020 04566

GREG LIEBERMAN Plaintiff

v

CROWN RESORTS LIMITED (ACN 125 709 953) Defendant
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JUDGE:

Stynes J

WHERE HELD:

Melbourne

DATE OF HEARING:

24 November 2022

DATE OF RULING:

16 December 2022

CASE MAY BE CITED AS:

Lieberman v Crown Resorts Ltd

MEDIUM NEUTRAL CITATION:

[2022] VSC 787

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GROUP PROCEEDINGS — Costs — Application for a Group Costs Order —Costs to be calculated as a percentage of the amount of any award or settlement recovered — Where the proposed Group Costs Order incorporates a sliding scale — Whether proper evidentiary basis to make the proposed Group Costs Order — Whether proposed percentage appropriate or necessary — Principles to be applied — Application granted — Supreme Court Act 1986, s 33ZDA — Allen v G8 Education Ltd [2022] VSC 32, Fox v Westpac; Crawford v ANZ [2021] VSC 573, Nelson v Beach Energy [2022] VSC 424, Gehrke v Noumi Ltd [2022] VSC 672, applied — Application granted.
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APPEARANCES:
Counsel Solicitors

For the Plaintiff W A D Edwards SC with
R V Howe Maurice Blackburn

For the Defendant K Loxley with
H Whitwell Allens
TABLE OF CONTENTS
A.. Introduction
B... Summary of decision
C.. Legal principles
D.. Current funding arrangement
E... The proposed application and the support for it
F... Evaluative assessment – The categorisation of issues
G.. Issue 1 – The certainty to be conferred by the proposed GCO
H.. Issue 2 – Other benefits to be conferred by the proposed GCO
I.... Issue 3 – Appropriateness of the proposed rate
I.1. Power of the Court to make an order employing a rate on a sliding scale
I.2. Evidentiary basis for the proposed sliding scale
I.3. Appropriateness of the rates
I.3.1 Modelled outcomes
I.3.2 Risk and reward
J.... Conclusion
K.. Orders
HER HONOUR:
A Introduction

1This is a group proceeding issued under Part 4A of the Supreme Court Act1986 (Vic) (‘Act’).
2It was commenced following the publication by the defendant (‘Crown’) of an ASX announcement on 19 October 2020 that Crown had been informed by AUSTRAC’s Regulatory Operations branch that it had identified potential non-compliance by Crown Melbourne Ltd with the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth) and related rules. Following the announcement, the price of ordinary shares in Crown fell.
3This proceeding is an “open class” representative proceeding on behalf of all persons (subject to some limited exceptions) who either acquired or held an interest in ordinary shares in Crown between 11 November 2014 and 18 October 2020 (‘the Relevant Period’).
4The plaintiff on his own behalf and on behalf of group members alleges that:
(a)Crown engaged in conduct that was misleading or deceptive in that it:
(i)made representations to the market relating to its (or its subsidiaries’) corporate governance generally, its dealings with relevant regulators, its compliance with anti-money laundering/counter-terrorism financing regulatory requirements and…

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.

Continue reading Lieberman v Crown Resorts Ltd

Details

AGLC: Lieberman v Crown Resorts Ltd [2022] VSC 787
Case: [2022] VSC 787
Decision Date: 16 December 2022

CaseChat Overview and Summary

The applicant, Lieberman, filed an application for a group costs order against Crown Resorts Ltd in the Victorian Supreme Court, seeking to establish a framework for costs in a group proceeding. The dispute involved the calculation of costs in relation to a group proceeding, specifically whether the proposed costs should be calculated as a percentage of any award or settlement recovered, and if the proposed sliding scale was appropriate.

The court was required to decide whether there was a proper evidentiary basis to make the proposed group costs order, whether the proposed percentage was appropriate or necessary, and to apply the relevant principles. The court considered previous cases such as Allen v G8 Education Ltd, Fox v Westpac; Crawford v ANZ, Nelson v Beach Energy, and Gehrke v Noumi Ltd, which provided guidance on the principles to be applied when making such an order.

The court found that the proposed group costs order had a proper evidentiary basis, and the sliding scale was appropriate and necessary. The court granted the application and made the group costs order as proposed. The order provided for costs to be calculated as a percentage of any award or settlement recovered, with the sliding scale incorporated into the order. The final orders of the court were that the application for a group costs order was granted, and the order was made as proposed.

Orders