| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
GROUP PROCEEDINGS LIST
S ECI 2021 04738
BETWEEN:
| PAUL LEIGHTON MUMFORD GAYLE MUMFORD | First Plaintiff Second Plaintiff |
| v | |
| EML PAYMENTS LIMITED | Defendant |
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JUDGE: | DELANY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 November 2022, further submissions 16 November 2022 |
DATE OF RULING: | 6 December 2022 |
CASE MAY BE CITED AS: | Mumford v EML Payments Limited |
MEDIUM NEUTRAL CITATION: | [2022] VSC 750 |
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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 – Whether proposed percentage appropriate or necessary – Retainer providing for solicitors to continue to conduct the proceeding if a GCO made – GCO made at a lesser percentage than specified in the application – Principles to be applied – Supreme Court Act 1986 (Vic), s 33ZDA – Civil Procedure Act 2010 (Vic), s 24 – Legal Profession Uniform Law Application Act 2014 (Vic), ss 172, 181 and 182 of Schedule 1 – Gehrke v Noumi Ltd [2022] VSC 672, applied – Allen v G8 Education Ltd [2022] VSC 32, Nelson v Beach Energy; Sanders v Beach Energy [2022] VSC 424, Fox v Westpac [2021] VSC 573, considered – Bogan v The Estate of Peter John Smedley (Deceased) [2022] VSC 201, distinguished.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | W Edwards SC with O Nanlohy | Shine Lawyers |
| For the Defendant | K Raghavan | Herbert Smith Freehills |
TABLE OF CONTENTS
Relevant legislation........................................................................................................................... 2
Applicable principles........................................................................................................................ 5
The evidence....................................................................................................................................... 7
The Proceeding................................................................................................................................... 8
The plaintiffs’ anticipated legal costs............................................................................................ 9
Alternatives to a GCO: No Win No Fee (NWNF) funding...................................................... 11
A litigation funder........................................................................................................................... 13
Internal Rates of Return: The Mullins report............................................................................. 15
Percentages allowed in other GCO applications....................................................................... 17
Should a GCO be made?................................................................................................................ 19
Is 30% an appropriate or necessary percentage?........................................................................ 23
HIS HONOUR:
Paul Leighton Mumford and Gayle Mumford are the lead plaintiffs in a group proceeding under Part 4A of the Supreme Court Act 1986 (Vic) (‘Act’), a shareholder class action, brought on behalf of persons who acquired an interest in the ordinary shares of EML Payments Ltd (‘EML’) between 19 December 2020 and 18 May 2021 (‘the relevant period’).
EML is listed on the Australian Stock Exchange. It provides a payment solutions platform worldwide. On or about 31 March 2020, EML completed its acquisition of Prepaid Financial Services (Ireland) Limited (‘PFS’). From 19 December 2020, PFS’s European business primarily operated through PFS Card Services (Ireland) Limited (‘PCSIL’). On 17 May 2021, EML securities were placed into a trading halt. On 19 May 2021, EML announced to the market that PCSIL had received correspondence from the Central Bank of Ireland raising significant regulatory concerns in respect of PCSIL’s Anti-Money Laundering/Counter Terrorism Financing (‘AML/CTF’) risk and control frameworks and governance. Immediately following the announcement, EML’s share price fell from $5.15 to $2.80 - a 45% reduction.
The Statement of Claim alleges…
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- Case
- [2022] VSC 750
- Decision Date
CaseChat Overview and Summary
The court examined the relevant statutes and case law to determine the principles governing the imposition of group costs orders. It referenced Gehrke v Noumi Ltd, which highlighted the need for proportionality and fairness in the costs awarded. The court also considered Allen v G8 Education Ltd, Nelson v Beach Energy, Sanders v Beach Energy, and Fox v Westpac, all of which emphasised the importance of a fair and reasonable costs order that reflects the work undertaken and the risk involved. The decision in Bogan v The Estate of Peter John Smedley (Deceased) was distinguished as it involved different circumstances and was not directly applicable.
The court concluded that the proposed percentage in the application was excessive and not necessary. It issued a group costs order at a lesser percentage, taking into account the principles of fairness and proportionality. The order ensured that the solicitors' retainer was protected, allowing them to continue with the proceeding if the group costs order was made.
The final order specified the percentage of costs to be awarded, ensuring that it was fair and reasonable, reflecting the work done and the risk assumed by the solicitors. The court's decision balanced the need for solicitors to be adequately compensated with the necessity to avoid excessive costs for the group.
Orders
Orders of the court
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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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