| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
GROUP PROCEEDINGS LIST
S ECI 2020 03365
| DANIEL CHRISTIAN O'BRIEN | Plaintiff |
| v | |
| AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522) | First Defendant |
| MACQUARIE BANK LIMITED (ACN 008 583 542) | Second Defendant |
---
JUDGE: | Harris J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 May 2025 |
DATE OF JUDGMENT: | 3 July 2025 |
CASE MAY BE CITED AS: | O'Brien v ANZ & Anor |
MEDIUM NEUTRAL CITATION: | [2025] VSC 389 |
---
GROUP PROCEEDING – Application for approval of settlement of group proceeding – Approval of settlement under s 33V of the Supreme Court Act 1986 (Vic) – Whether settlement distribution scheme is fair and reasonable – Settlement distribution between classes of group members – Deductions from the settlement fund – Whether group costs order should be varied – Settlement approved – Supreme Court Act 1986 (Vic) Part 4A, s 33V.
PRACTICE AND PROCEDURE – Confidentiality orders.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J Stoljar SC with D Fahey | Maurice Blackburn Lawyers |
| For the Defendants | E Dias | Herbert Smith Freehills |
TABLE OF CONTENTS
The application for settlement approval and the issues for consideration............................ 1
The nature of the claims in the proceeding.................................................................................. 3
Relevant procedural background including the group costs order......................................... 5
Group costs order.......................................................................................................................... 5
Boomerang Claims registrations................................................................................................. 7
Reinstatements and late registrations...................................................................................... 10
Confidentiality orders..................................................................................................................... 11
Principles for considering appropriateness of the settlement................................................ 14
Proposed settlement........................................................................................................................ 15
Group member participation........................................................................................... 17
Modelling of the group losses......................................................................................... 18
Settlement distribution between group members........................................................ 19
Objections to settlement................................................................................................................. 20
Fairness of the settlement............................................................................................................... 23
The reasonableness of a compromise....................................................................................... 23
The reasonableness of the settlement sum.............................................................................. 24
Reasonableness of other aspects of the settlement distribution process............................. 25
Fairness between group members............................................................................................ 26
Deductions from the settlement sum........................................................................................... 29
The legal costs and the group costs order............................................................................... 29
Considerations on whether the group costs order should be varied......................... 30
The reasons for making the group costs order.............................................................. 31
The plaintiff’s submissions............................................................................................... 32
There is no basis on which the group costs order should be varied.......................... 34
Conclusion on group costs order....................................................................... 38
The costs of the settlement administration.............................................................................. 39
Maurice Blackburn as Scheme Administrator................................................. 39
Costs of scheme administration......................................................................... 40
Representative plaintiff payment to Mr O’Brien.................................................................... 41
Appropriate orders........................................................................................................................... 43
HER HONOUR:
The application for settlement approval and the issues for consideration
This is a representative proceeding brought by Mr O’Brien on behalf of group members who claim to have suffered loss by reason of having entered into car loans through car dealerships in respect of which Australia and New Zealand Banking Group Limited (ANZ) was alleged to have paid the dealers an undisclosed ‘flex commission’.
The parties have resolved to settle the proceeding on the basis that there are no admissions and no acceptance of liability by the defendants. The parties now seek approval of the settlement pursuant to s 33V of the Supreme Court Act 1986 (Vic). The settlement sum is $85 million to be distributed…
Continue reading O'Brien v ANZ
Sign in free to access the full text
- AGLC
- O'Brien v ANZ [2025] VSC 389
- Case
- [2025] VSC 389
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the settlement distribution scheme proposed by the parties was fair and reasonable, and whether the deductions made from the settlement fund were justified. The court also had to consider whether the order for the payment of group costs should be varied. These issues were critical in determining whether the settlement was in the best interests of all class members.
The court examined the terms of the settlement, including the distribution of funds between different classes of group members and the deductions made from the settlement fund. It found that the settlement was fair and reasonable, taking into account the complexity and risk of the litigation, the costs of proceeding with the action, and the benefits of the settlement to the class members. The court also concluded that the deductions from the settlement fund were justified and that the order for the payment of group costs should not be varied. The settlement was approved under section 33V of the Supreme Court Act 1986 (Vic). Additionally, the court made an order for confidentiality, preventing the parties from disclosing the terms of the settlement.
Orders
Orders of the court
Full text does not contain this section.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.