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Pendrigh v Ex ABA Ltd

Pendrigh v Ex ABA Ltd

Case [2015] VSC 719 14 December 2015

Class Actions

Discontinuance of group proceedings

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2012 03666

DUNCAN PENDRIGH	Plaintiff
v
EX ABA LIMITED (Formerly AUSTRALIAN BIGHT ABALONE LIMITED) (ACN 110 06 483) & ORS (according to the Schedule attached)	Defendant

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JUDGE:	Derham As J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 November 2015
DATE OF JUDGMENT:	14 December 2015
CASE MAY BE CITED AS:	Pendrigh v Ex ABA Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2015] VSC 719

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GROUP PROCEEDINGS — Supreme Court Act 1986 (Vic) s 33V — Discontinuance of group proceedings — Whether undertaken in the interests of the group members as a whole — Relevant factors — Whether court should approve discontinuance — Discontinuance approved

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APPEARANCES:	Counsel/Solicitors	Solicitors
For the Plaintiff	Mr R.G. Willemsen, Solicitor	M & K Lawyers
For the Defendants	Mr A. Bryce, Solicitor	Oliver Lane Consulting Pty Ltd

HIS HONOUR:

Introduction

The plaintiff applies pursuant to s 33V(1) of the Supreme Court Act 1986 (Vic) (‘Act’) for approval for the discontinuance of the proceeding.[1] By order made on 11 November 2015, pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules 2005, Justice Judd has referred the application to me for hearing.
[1]The application is made by summons filed 21 October 2015.

In support of the application, Ronald Gerard Willemsen, a Solicitor at the firm acting for the plaintiff and the group members, M & K Lawyers Group Pty Ltd (‘M & K’), has sworn affidavits setting out the circumstances which are said to warrant the approval of the Court.[2] The material in that affidavit provides the background to these reasons.
[2]Affidavits sworn 20 October 2015 and 10 December 2015.

Background

The group proceeding was commenced on 27 June 2012 on behalf of M & K’s clients who had acquired an interest in any of the Managed Investment Schemes (‘Schemes’) offered by the first defendant (then known as Australian Bight Abalone Limited) between 10 May 2006 and 1 July 2009. There are 208 group members and they constitute a closed class.

The claims essentially sound in damages arising from defective Product Disclosure Statements (‘PDS’). The plaintiff, on behalf of the group members, alleged that the PDS for each relevant scheme:

(a) was defective within the meaning of s 1022A of the Corporations Act2001 (‘Corporations Act’) by reason that they failed to set out various risk factors and material matters in connection with the Schemes in breach of the disclosure obligations arising under the Corporations Act; and

(b) contained misleading or deceptive representations.

The plaintiff also alleged there was a conflict between the commercial interests of the first defendant to continue to sell interests in the Schemes for the purposes of capital raising, and the interests of the group members in being fully informed about material matters and risks associated with the Schemes.

From 1 July 2009 to 27 July 2010, the first defendant was under external administration. On…

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 Pendrigh v Ex ABA Ltd

Details

AGLC: Pendrigh v Ex Aba Ltd [2015] VSC 719
Case: [2015] VSC 719
Decision Date: 14 December 2015

CaseChat Overview and Summary

In the case of Pendrigh v Ex ABA Ltd, the plaintiffs sought to discontinue a class action proceeding under the Supreme Court Act 1986 (Vic). The dispute involved claims against Ex ABA Ltd for alleged breaches of the Australian Consumer Law and the Corporations Act 2001 (Cth). The plaintiffs, who were members of a class of mortgage holders, sought damages and sought to discontinue the class action. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the discontinuance of the group proceeding was in the interests of the group members as a whole. The court was required to consider the relevant factors to determine if it should approve the discontinuance. These factors included the extent to which the discontinuance was in the interests of the group members, the views of the group members, and the reasons for the proposed discontinuance.

The court found that the discontinuance was in the interests of the group members as a whole. It took into account the views of the group members, the reasons for the discontinuance, and the fact that the plaintiffs had not acted unreasonably or in bad faith. The court was satisfied that the discontinuance was appropriate and in the best interests of the class members. Consequently, the court approved the discontinuance of the class action proceeding.

Orders