Re Banksia Securities Ltd (recs and mgrs apptd)
[2017] VSC 148
•31 March 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST
S CI 2012 07185
IN THE MATTER of BANKSIA SECURITIES LIMITED
(RECEIVERS AND MANAGERS APPOINTED)
(IN LIQUIDATION) (ACN 004 736 458)
BETWEEN:
| LAURENCE JOHN BOLITHO | Plaintiff |
| v | |
| BANKSIA SECURITIES LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 004 736 458) and ORS | Defendants |
- AND -
S CI 2016 02175
IN THE MATTER of BANKSIA SECURITIES LIMITED
RECEIVERS AND MANAGERS APPOINTED)
(IN LIQUIDATION) (ACN 004 736 458)
BETWEEN:
| JOHN ROSS LINDHOLM AND PETER DAMIEN McCLUSKEY IN THEIR CAPACITY AS JOINT AND SEVERAL SPECIAL PURPOSE RECEIVERS OF BANKSIA SECURITIES LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 004 736 458) and ORS | Plaintiffs |
| v | |
| PATRICK JOHN GODFREY and ORS | Defendants |
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JUDGE: | ROBSON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 and 25 August 2016 |
DATE OF JUDGMENT: | 31 March 2017 |
CASE MAY BE CITED AS: | Re Banksia Securities Limited (Rec & Mgr Apptd) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 148 |
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CIVIL PROCEDURE – Settlement approval – Supreme Court Act 1986 (Vic) (the Supreme Court Act) s 33V – Whether settlement of a group proceeding reasonable and fair – Whether legal costs are reasonable – Whether order as to payment of a compensation amount to litigation funder appropriate or necessary to ensure that justice is done in the proceeding – Section 33ZF the Supreme Court Act – Whether costs payable to litigation funder are reasonable – Sections 33V and 33ZF Supreme Court Act 1986 (Vic).
CIVIL PROCEDURE – Application under s 37 of the Supreme Court Act by special purpose receivers appointed by the Court for power to settle proceedings – Whether receivers are justified in exercising such power in entering into a deed of settlement – Whether settlement is just and reasonable – Section 37 Supreme Court Act 1986 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| In S CI 2012 07185 For the Plaintiff | Mr NJ O’Bryan SC with Mr MWL Symons | Portfolio Law Pty Ltd |
| For the First Defendant | Mr CM Scerri QC with Ms K Anderson | Maddocks |
| For the Third Defendant | Mr PG Liondas | Clayton Utz |
| For the Fourth Defendant | Mr AJ Kelly QC | Moray & Agnew |
| For the Fifth Defendant | Mr RM Peters | King Wood Mallesons |
| For the Sixth, Seventh and Ninth Defendants | Mr J Uljans | Hall & Wilcox |
| For the Eighth Defendant | Mr M Farquhar | |
| For the Sixth Third Party | Mr AJ McClelland QC | |
| For the Seventh Third Party | Mr HL Redd | |
| For the Eighth Third Party | Mr G Carfoot | Minter Ellison |
| For the Ninth Third Party | Mr S Goubran | |
| For the Tenth and Eleventh Third Party | Ms S Fountain | |
| For the Twelfth Third Party | Ms Y Seah | |
| Amicus Curiae/Contradictor | Mr DJ O’Callaghan QC | |
| In S CI 2016 02175 For the Plaintiffs | Mr CM Scerri QC with Mr J Redwood | Maddocks |
| For the First Defendant | Mr NJ O’Bryan SC with Mr MWL Symons | Portfolio Law |
| For the Second Defendant | Mr I Waller QC with Mr PG Liondas | Clayton Utz |
| For the Third Defendant | Mr RM Peters | King Wood Mallesons |
| For the Fourth, Fifth and Seventh Defendants | Hall & Wilcox | |
| For the Sixth Defendant | K & L Gates | |
| For the Eighth and Ninth Defendants | Mr A McClelland QC with Mr C Parkinson | Brian Ward & Partners and Piper Alderman |
| For the Tenth and Fifteenth Defendants | Mr HL Redd | Hall & Wilcox |
| For the Eleventh Defendant | Terrill & Holmes Lawyers | |
| For the Twelfth and Thirteenth Defendants | Mr AJ Kelly QC | Moray & Agnew |
| For the Fourteenth Defendant | Mr D Star | Minter Ellison |
| For the Sixteenth and Seventeenth Defendants | Mr D Leggatt | DLA Piper |
| For the Eighteenth Defendant | Ms Y Seah | Wotton & Kearney |
| For the Nineteenth Defendant | Mr G McArthur QC with Mr S Goubran | Sparkie Helmore |
| Amicus Curiae/Contradictor | Mr DJ O’Callaghan QC |
TABLE OF CONTENTS
Introduction.......................................................................................................................... 1
Amicus curiae/contradictor.............................................................................................. 2
Orders.................................................................................................................................... 2
Background of the Bolitho proceeding............................................................................ 4
Background to the special purpose receivers’ application........................................... 8
Proposed settlement........................................................................................................... 9
Approval of the Court....................................................................................................... 10
Funding agreement........................................................................................................... 14
Legal fees............................................................................................................................ 16
Opt out notice.................................................................................................................... 20
Is the settlement of the Bolitho proceeding fair and reasonable?.............................. 21
Litigation funder ‘uplift’................................................................................................... 23
Approval of ‘uplift’........................................................................................................... 25
The special purpose receivers’ application................................................................... 27
Special purpose receivers justified in seeking directions........................................... 28
Authority of the special purpose receivers to settle the BSL proceeding................ 28
Settlement of the BSL proceeding................................................................................... 29
HIS HONOUR:
Introduction
In 2012 Banksia Securities Limited (BSL), a non-bank property lender, collapsed owing some $660 million to investors, including many retirees in regional and rural communities in Victoria. Several claims have been made by parties who suffered loss and damage as a result of the collapse of BSL.
In 2012, Laurence John Bolitho (Bolitho) commenced a group proceeding on his behalf, and on behalf of 16,000 other debenture holders, claiming damages, being the outstanding principal in respect of the BSL debentures, against the directors and auditors of BSL, BSL, Trust Company Nominees Limited (Trust Co) (the trustee for the BSL debenture fund), and others (the Bolitho proceeding). At the time of the hearing before me, the damages had been particularised at $133 million. As discussed below, some 80 cents in the dollar had been recovered during the receivership and distributed to the debenture holders.
Third party proceedings have been brought by Trust Co and BSL, defendants to the Bolitho proceeding.[1]
[1]BSL has made a third party claim against RSD chartered accountants (the fourth defendant), and Insurance House Pty Ltd. Insurance House acted as BSL’s insurance broker. No claim is made against Insurance House by the plaintiff. Trust Co has made a number of third party claims in the Bolitho proceeding, including claims against the settling defendants.
In 2014, special purpose receivers, appointed to BSL by order of the Hon Justice Black of the Supreme Court of New South Wales, commenced proceedings against the directors of BSL, auditors of BSL and others, on behalf of BSL (the BSL proceeding).
A proposed settlement deed, dealing with both the Bolitho proceeding and the BSL proceeding, was entered into on 12 April 2016, by Bolitho, BSL Litigation Partners Limited (BSLLP) (the litigation funder for the plaintiff in the Bolitho proceeding), BSL, and all the defendants in the Bolitho proceeding, save BSL and Trust Co. The settlement deed settles the Bolitho proceeding against all defendants, save for the defendants BSL and Trust Co, and settles the BSL proceeding against all defendants. The third party proceedings in the Bolitho proceeding are not subject to the proposed settlement.
The total settlement sum is $13,250,000 (the settlement sum). The settlement sum has been apportioned between the two proceedings as follows:
(a) the Bolitho proceeding — $5,200,000 (the Bolitho settlement sum); and
(b) the BSL proceeding — $8,050,000 (the BSL settlement sum).
In the Bolitho proceeding the plaintiff seeks the Court’s approval to the partial settlement of his claims, pursuant to s 33V of the Supreme Court Act 1986 (Vic) (the Supreme Court Act).
The special purpose receivers have commenced separate proceedings. The special purpose receivers seek an order under s 37 of the Supreme Court Act giving them power to settle the BSL proceeding and seek directions that they are so justified (the special purpose receivers’ application).
Amicus curiae/contradictor
The parties agreed that an amicus curiae/contradictor should appear to assist the Court in relation to the application of the plaintiff in the Bolitho proceeding and the application of the special purpose receivers. On 16 June 2016, the Court appointed Mr David O’Callaghan QC (now Justice O’Callaghan of the Federal Court of Australia) to act as amicus curiae/contradictor in both applications.
Orders
On 26 August 2016, after hearing the parties on the applications, I made the following orders.
In the application in the Bolitho proceeding I ordered:
(1) Pursuant to sections 33V and 33ZF of the [Supreme Court Act], the Court approves the settlement of this proceeding upon the terms set out in the deed of settlement and release (the terms of settlement) executed for and on behalf of the plaintiff, the first defendant and the settling defendants (and others) in April 2016, which terms are confidential and have been placed in a sealed envelope on the Court file marked “CONFIDENTIAL – Not to be Opened or Accessed by any person without an order of the Court.”
(2) Pursuant to section 33ZF of the [Supreme Court] Act, the Court authorises the plaintiff, nunc pro tunc, for and on behalf of the group members and each of them, to enter into and give effect to the terms of settlement as an agreement duly executed by the parties according to its terms and enter into and give effect to the transactions contemplated by the terms of settlement.
(3) Pursuant to sections 33ZB and 33ZF of the [Supreme Court] Act, the persons affected by the settlement of the proceedings are the plaintiff, the settling defendants and the group members
Costs inter parties
(4) All costs orders made to date in the proceeding, as between the plaintiff and the settling defendants be vacated.
(5) There be no order as to costs as between the plaintiff and the settling defendants.
Other matters
(6) Pursuant to sections 33V(2) and 33ZF of the [Supreme Court] Act, the amount of $858,000 be approved as the amount payable out of the settlement sum to the plaintiff’s litigation funder.
(7) Pursuant to sections 33V(2) and 33ZF of the [Supreme Court] Act, the amount of $2,550,000 be approved as the amount payable out of the settlement sum in respect of the plaintiff’s legal costs, referrable to the settlement.
(8) Pursuant to sections 33V(2) and 33ZF of the Supreme Court Act, the plaintiff pay out of the settlement sum on the indemnity basis the one half of the fees of the amicus curiae/contradictor (Mr O’Callaghan) ordered by the Court on 16 June 2016.
(9) Upon completion of all steps contemplated by the Terms of Settlement, the proceeding as between the plaintiff and the settling defendants stand dismissed.
In the special purpose receivers’ application, to make clear that special purpose receivers had the power to enter into the settlement, and to settle the BSL proceeding in the terms set out in the settlement deed, I made the following orders.
(1) The first plaintiffs (special purpose receivers) be granted leave to amend the originating process dated 3 June 2016 in the form handed up on 25 August 2016.
(2) The first plaintiffs have the power to settle Supreme Court Proceeding No. S CI 2014 05875, known as BSL v Patrick Godfrey & Ors ([BSL] Proceedings) on the terms set out in in the settlement deed exhibited at confidential exhibit DCN-1 to the affidavit sworn by David Charles Newman dated 15 July 2016 (settlement deed).
(3) The First Plaintiffs are justified in settling the [BSL] Proceedings on the terms set out in the settlement deed.
(4) Order 10 of the orders made by Robson J on 16 June 2016 be vacated.
(5) One half of the costs of Mr O’Callaghan QC (the amicus curiae/contradictor) of and incidental to the appointment as amicus curiae be paid on an indemnity basis by the plaintiffs from the BSL settlement sum (as that term is defined in the settlement deed).
(6) This order be drawn up by the legal practitioners for the plaintiffs and sealed by the Prothonotary pursuant to rule 60.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
Upon making these orders I reserved my reasons, which I now give.
Background of the Bolitho proceeding
BSL was incorporated in 1968 and carried on a substantial non-bank property lending business, operating principally in rural Victoria, particularly in the Goulburn Valley, Ballarat, Bendigo, Warrnambool, Kerang, Kyabram and the Western District generally.
BSL raised moneys from the public by offering and issuing BSL debentures to investors, pursuant to prospectuses, and advancing the funds raised to third party borrowers, primarily for property investment and development purposes. BSL operated pursuant to an Australian Financial Services Licence issued by the Australian Securities and Investments Commission.
In the Bolitho proceeding Bolitho brought a group proceeding on his own behalf, and on behalf of some 16,000 investors holding debentures issued by BSL, to recover losses suffered following the collapse of BSL in 2012. The collapse was alleged to be due to the merger of BSL with Statewide Secured Investments Pty Ltd (Statewide) in 2009. The collapse of BSL is discussed further below.
In the Bolitho proceeding the plaintiff filed a confidential and privileged joint opinion of counsel for Bolitho. Bolitho relied on the opinion in submitting that the proposed settlement is fair, proper and appropriate, and likely to be in the interests of the group members as a whole. The joint opinion canvassed the basis of the plaintiff’s claim.
Mr O’Bryan SC, senior counsel for Bolitho, said that the case was very much a prospectus case and the failure to inform debenture holders of the deteriorating position of BSL after absorbing the non-performing loans made by Statewide.
The Bolitho proceeding now seeks $133 million in damages and interest against the following defendants:
(a) BSL (the first defendant) (against which the plaintiff has claims pursuant to statute);
(b) Cherry Fund Limited (receivers and managers appointed) (Cherry Fund Limited) (the second defendant);
(c) Trust Co (the third defendant) — the trustee appointed to act on behalf of debenture holders (against which the plaintiff has claims pursuant to statute, and for breaches of trust, by allowing BSL to become insolvent as a result of the merger with Statewide in 2009);
(d) RSD chartered accountants (the fourth defendant);
(e) Patrick John Godfrey (the fifth defendant);
(f) Nicholas Livingstone Carr (the sixth defendant);
(g) Peter William Keating (the seventh defendant);
(h) Neil Stewart Mathison (the eighth defendant); and
(i) Geoffrey Grenville Skewes (the ninth defendant).
The joint opinion also provides the following background to the group proceeding.
Statewide carried on a similar business to BSL. At the time of the acquisition in 2009, Statewide’s book of loan assets represented nearly 60 per cent of the reported value of the combined BSL/Statewide loan book following the merger. The reported net equity of the merged entities was less than $30 million. Allegedly their true net equity was probably negative, that is, the merged entity was likely insolvent. Statewide had a minimum capital adequacy requirement significantly below that required for BSL under its trust deed. At the time of the merger, Statewide had almost no provision for bad or doubtful loans in its accounts, despite many loans being in default.
Following BSL’s acquisition of Statewide, Statewide’s loan book assets were progressively transferred to BSL. Many of these loans were in default, and, accordingly, the transfers were in breach of the BSL trust deed. As the bad loans were transferred, the percentage of BSL’s loan book comprised of bad loans increased and BSL’s financial condition deteriorated. The deterioration was most obvious in relation to the worsening of BSL’s capital adequacy ratio. BSL was alleged to be holding a large portfolio of loans which were non-performing, however, BSL’s accounting provisions for bad and doubtful debts increased by only a small amount during that period. It is alleged that, ultimately, the amalgamation brought about the collapse of BSL.
After the Statewide acquisition BSL continued to issue debentures pursuant to its public prospectuses. New prospectuses were issued by BSL in each of 2009, 2010 and 2011. The 2012 prospectus was in the course of preparation when BSL collapsed and the receivership overtook its issuance.
Bolitho alleges that he and the group members suffered financial loss because of:
(a) misstatements in, or omissions from, prospectuses issued by BSL in respect of which Bolitho and group members have a claim for damages against BSL, the auditor, and the directors of BSL; and
(b) breaches, or involvement in breaches, of statutory and/or equitable obligations by BSL, the trustee, the auditor and the directors in relation to debentures issued by BSL.
All defendants deny that they are liable to Bolitho and the group members.
Prior to the commencement of the BSL proceeding Trust Co had appointed receivers to BSL on 25 October 2012. Trust Co was to represent and act in the best interests of BSL’s debenture holders. Trust Co as the trustee holds a first ranking security interest over all assets and undertakings of BSL on behalf of all debenture holders.
Receivers were appointed to allow an independent insolvency practitioner to control BSL’s business and preserve the assets of BSL for the benefit of all debenture holders and creditors.
The receivership has now been substantially completed. To date debenture holders have received a distribution of approximately 80 cents for each $1 of debentures held.[2] Nevertheless, there has been a significant shortfall in asset realisations compared to the book value of those assets.
[2]See attached notice to the Orders of Robson J, made on 2 June 2016.
The receivers sought the appointment of liquidators to ensure that an independent investigation and assessment into potential claims against Trust Co would be conducted, and to ensure that any such claims would be fully presented at mediations and/or prosecuted in subsequent proceedings.
John Lindholm and Peter McCluskey of Ferrier Hodgson were appointed as liquidators of BSL on 24 June 2014 pursuant to an order of this Court. The liquidators conducted public examinations and consequently filed proceedings on behalf of BSL against Trust Co on 27 March 2015 (liquidators’ proceeding).
On 30 September 2015 Black J in the Supreme Court of New South Wales made orders appointing the liquidators as special purpose receivers, with the appointment taking effect on 6 October 2015.
Background to the special purpose receivers’ application
On 5 November 2014 the receivers commenced the BSL proceeding, seeking damages and other relief against:
(a) the directors and an officer of Banksia for breaches of duty, being:
(i) Patrick John Godfrey (first defendant);
(ii) Peter William Keating (second defendant);
(iii) Nicholas Livingstone Carr (third defendant);
(iv)Geoffrey Grenville Skewes (fourth defendant);
(v) Geoffrey S A Lipshut (fifth defendant);
(vi)Wesley D Santilla (sixth defendant);
(b) the auditors of BSL in negligence, being:
(i) Maxwell Brown and Mountjoy (a partnership) (seventh defendant) (not a defendant to the Bolitho proceeding);
(ii) Richmond Sinnot & Delahunty (eighth defendant);
(iii) Richmond Sinnot & Delahunty Pty Ltd (ninth Defendant);
(c) BSL’s solicitors, in negligence:
(i) The Lantern Legal Group Pty Ltd (T/A Harwood Andrews) (not a defendant to the Bolitho proceeding) (the tenth defendant); and
(d) members of Lloyds Syndicate AMA 1200 Argo (the eleventh defendant).
(e) The BSL proceeding makes no claim against Trust Co, the trustee.
The order of Black J of 30 September 2015 provides:
1.John Ross Lindholm and Peter Damien McCluskey in their capacity as special purpose receivers ‘shall be responsible for causing BSL to prosecute and defend the proceedings and shall not have any power, authority, function, role or responsibility in their capacity as special purpose receivers appointed pursuant to Order 1 in relation to any other matter in the receivership’;
2.the receivers shall not have any power, authority, function, role or responsibility for the conduct of the proceedings but otherwise shall be exclusively responsible for all other matters arising in the receivership;
3.to the extent necessary, leave be granted to John Ross Lindholm and Peter Damien McCluskey pursuant to s 532(2) of the Act to continue to act as liquidators of BSL notwithstanding their appointment by the Court as special purpose receivers.
Proposed settlement
On 12 April 2016 Bolitho and all defendants in the Bolitho proceeding, other than Trust Co and BSL, which has some third party insurance claims remaining, (hereinafter called ‘the settling defendants’), executed a settlement deed. The settlement deed also settles the BSL proceeding (but not the liquidators’ proceeding).
The special purpose receivers, being also the liquidators, support Bolitho in bringing an application for Court approval of the settlement.
The balance of the Bolitho settlement sum (after the deduction of legal costs and the fee to be paid to the litigation funder) will be distributed to all debenture holders equally on the basis of the face value of their outstanding debentures.
The BSL settlement is discussed below when dealing with the special purpose receiver’s application.
There are conditions that must be met before the proposed settlement is to bind the parties, including that:
(a) not more than 2 per cent (by face value of the debentures on issue by BSL as at 25 October 2012) of group members opt out of the proposed settlement by 4.00 pm (AEST) on 15 July 2016; and
(b) this Court grants approval of the settlement of the Bolitho proceeding pursuant to s 33V(1) of the Supreme Court Act on the terms set out in the settlement deed.
The opt out notice sent to debenture holders is discussed below. The exact percentage of debenture holders who validly opted out of the proposed settlement as at 15 July 2016 is unclear. However, on the day BSL ceased trading and went into receivership the face value of debentures on issue was $663 million; 2 per cent of that figure is approximately $13 million. Approximately 1,500 opt out notices were received from debenture holders, constituting about $34.3 million. It was submitted by Mr Godfrey, on behalf of the settling defendants, that the percentage of group members who opted out (by face value of the debentures on issue by BSL as at 25 October 2012) is at least 5 per cent.
Under clause 7.12 of the settlement deed provision is made for all parties to waive fulfilment of any condition that applies to them.
At the hearing on 25 August 2016 I was informed that all the defendants had agreed to waive the condition precedent that not more than 2 per cent of group members opt out of the proposed settlement. I turn now to the second requirement.
Approval of the Court
The settlement of the Bolitho proceeding will not take effect unless and until the settlement is approved by the Court, pursuant to the requirements of the Supreme Court Act.
The relevant provisions of the Supreme Court Act are as follows:
S 33V(1) A group proceeding may not be settled or discontinued without the approval of the Court.
(2)If the Court gives such approval, it may make such orders as it thinks fit with respect to the distribution of any money, including interest, paid under a settlement or paid into Court.
S 33ZBA judgment given in a group proceeding –
(a)must describe or otherwise identify the group members who will be affected by it, and
(b)subject to section 33KA, binds all persons who are such group members at the time the judgment is given.
S 33ZFIn any proceeding (including an appeal) conducted under this Part the Court may of its own motion or on application by a party, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding.
The purpose to be served by s 33V has been said to be ‘obvious’; Branson J observed:[3]
The purpose intended to be served by s 33V(1) is obvious. It is appropriate for the court to be satisfied that any settlement or discontinuance of representative proceedings has been undertaken in the interests of the group members as a whole, and not just in the interests of the applicant and the respondent. In my view, s 33V proscribes not only complete settlement of proceedings without the approval of the court, but also settlement of claims against a joint respondent, or settlement of any substantive claim against a respondent.
[3]ACCC v Chats House Investments Pty Ltd (1996) 71 FCR 250, 258.
Court approval is required under s 33V of the Supreme Court Act, notwithstanding that the proposed settlement would result in only a partial settlement of the Bolitho proceeding. The powers conferred by s 33V have been construed as authorising approval by way of partial settlement in a group proceeding.[4]
[4]Wheelahan v City of Casey [2011] VSC 215; Matthews v SPI Electricity Pty Ltd [2013] VSC 74 [9], [23].
In Blairgowrie Trading Ltd v Allco Finance Group,[5] Wigney J considered an application for orders under s 33ZF in a shareholders’ group proceeding. His Honour made several observations on the meaning and application of s 33ZF(1) of the Federal Court Act, which is in pari materia to s 33ZF of the Supreme Court Act.
[5][2015] 325 ALR 539 (‘Blairgowrie’).
First, s 33ZF of the Supreme Court Act confers a broad, discretionary power on the Court in relation to representative proceedings:[6]
The only express limitation or requirement in s 33ZF is that the court thinks the order is appropriate or necessary to ensure that justice is done in the proceeding. No other limitation should be read into the section.
[6]Blairgowrie [2015] 325 ALR 539 [97], [98].
Further, because the power is discretionary:[7]
[E]ven if the express requirement that the order be appropriate or necessary to ensure that justice is done in the proceedings is satisfied, the court retains a residual discretion whether or not to make the order.
[7]Blairgowrie [2015] 325 ALR 539 [104].
Secondly, Wigney J said that the issue or reason for making an order under s 33ZF ‘must also be one that has arisen in, or relates to, “the proceeding”.’ His Honour said:[8]
[T]he section…is not directed…at resolving theoretical or practical problems concerning litigation funding that might occur in representative proceedings generally. Nor is it concerned with issues or problems concerning the rights or interests of…litigation funders. Justice ‘in the proceeding’ would not ordinarily involve any consideration of the commercial interests of a litigation funder unless they gave rise to some issue or problem that has, or is likely to have, some direct impact on the proceeding.
[8]Blairgowrie [2015] 325 ALR 539 [113].
Thirdly, because s 33ZF requires that ‘justice is done’, the section:
[A]lso suggests that the particular issue or problem must somehow relate to the just hearing and determination of the claims, or the enforcement of the rights or subject-matter in issue in the proceeding... A requirement that justice is done also suggests that the proposed order must be fair and equitable. That will ordinarily involve a consideration of the position of all parties.[9]
[9]Blairgowrie [2015] 325 ALR 539 [114] (citation omitted).
Fourthly:[10]
[I]t is appropriate, in construing s33ZF, to recognise the unusual position of group members in a representative proceeding brought pursuant to Pt IVA. Consent is not required for a person to become a group member and, while group members may benefit from a representative proceeding, their rights might also be adversely affected since they are bound by any judgment in the proceeding unless they have opted out. In these circumstances, in considering the exercise of the power in s33ZF, the court should be concerned to ensure that the interests of those who are absent, but represented, are not prejudiced by the conduct of the litigation on their behalf.
[10]Blairgowrie [2015] 325 ALR 539 [115] (citations omitted).
Fifthly, Wigney J said that in considering the position of all group members — both those who signed the litigation funding agreement and those who did not — it must be borne in mind that the Federal Court Act contemplates that the group members may include so-called ‘free riders.’ It is the plaintiff who assumes the burden being liable to bear the costs and expenses of advancing the claims in the proceeding, and that is obviously fair because under the opt out system someone can be a group member without their consent or knowledge.
In addition to the above points raised by Wigney J, the amicus curiae submitted that the Court must be satisfied that any proposed settlement of a representative proceeding is in the interests of the group members as a whole.[11] The applicant bears the onus of showing that settlement is in the interests of all group members.[12] It is for that reason that the solicitor for the plaintiff has ‘a duty to the non-funded group members to conduct the proceeding in a manner consistent with their interests.’[13]
[11]ACCC v Chats House Investments Pty Ltd (1996) 71 FCR 250, 258.
[12]Mercedes Holdings Pty Ltd v Waters (No 1) (2010) 77 ACSR 265 [10].
[13]Dorajay Pty Ltd v Aristocrat Leisure Ltd [2009] FCA 19 [8] (‘Dorajay’); citing King v AG Australia Holdings Ltd (2002) 121 FCR 480, 489 (Moore J).
The amicus curiae also submitted that it has been recognised in several decisions that those group members who provide funding under the terms of a funding agreement should not be left worse off than those group members who did not sign the agreement.[14] This point is particularly relevant in relation to the fees claimed by the litigation funder, discussed further below.
[14]See Dorajay [2009] FCA 19; P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd (No 4) [2010] FCA 1029 [28]; Modtech (No 1) [2013] FCA 626 [58]; Blairgowrie [2015] 325 ALR 539 [147].
Practice Note 10 of 2015[15] states that in order to approve a settlement the Court will usually need to be persuaded that the proposed settlement:
(a) is fair and reasonable having regard to the claims made on behalf of the group members who will be bound by the settlement; and
(b) has been undertaken in the interests of group members and not just in the interests of the plaintiff and defendants.[16]
[15]Section 11(1) of the Supreme Court of Victoria Practice Note No 10 of 2015 Conduct of Group Proceedings (Common Law Division) (Practice Note 10 of 2015).
[16]Section 11(2) of Practice Note 10 of 2015 enumerates the factors that should be addressed by the parties when applying for court approval of a settlement. These factors were listed by Forrest J in Downie v Spiral Foods Pty Ltd [2015] VSC 190 (‘Downie’), [49]; and applied by Murphy J in Kelly vWilmott Forests Ltd (in liquidation) (No 4) [2016] FCA 323 (‘Kelly v Wilmott’). See also Pharm-A-Care Laboratories Pty Ltd v Commonwealth of Australia [2011] FCA 277 [27] (‘Pharm-A-Care’): ‘[t]he relevance of any particular consideration, and the weight to be given to it, will depend upon the circumstances of each individual case.’
In determining whether the proposed settlement is fair and reasonable, and in the interest of the group members as a whole, regard should be had to the arrangements with the legal representatives of the plaintiff and the litigation funder, as a portion of the Bolitho settlement sum was to be paid to the litigation funder as reimbursement of legal costs and a further amount as consideration for financing the Bolitho proceeding.
Funding agreement
BSLLP is the litigation funder in the group proceeding. BSLLP entered into a litigation funding agreement with Bolitho on 13 March 2014. Previously the plaintiffs’ costs of the proceeding had been born by Bolitho’s then solicitor, Mr Elliott. However, in June 2014 Mr Elliott advised all group members that he was no longer able to finance the proceedings and would not be able to provide the significant security required for cost orders.
Group members were invited to enter into a litigation funding agreement with BSSLP. 5,413 group members, holding approximately 55 per cent of the outstanding debentures by face value, entered into a funding agreement with BSLLP.
The litigation funding agreement dealt with a wide range of matters for the ongoing conduct of the Bolitho proceeding. The agreement provided, inter alia, that:
(a) The lawyers for Bolitho and BSLLP would determine what claims should be pursued in the proceeding.
(b) BSLLP would give day-to-day instructions to the lawyers on all matters concerning the claims and proceedings and may give binding instructions to the lawyers and make decisions on behalf of Bolitho in relation to the claims.
(c) BSLLP could, in its sole discretion, following consultation with the lawyers, cease to fund any claim.
The agreement with Bolitho contained detailed provisions about the conduct of the case and the assistance Bolitho had to provide. It is not clear, however, whether the funding agreements with other group members contained similar terms.
Under the funding agreement with Bolitho, BSLLP:
(a) agreed to provide management services in respect of the case, including advising Bolitho on strategy, database and document management, reporting to Bolitho in respect of progress, and facilitating Alternative Dispute Resolution processes;
(b) would pay the costs of the proceeding;
(c) would not seek reimbursement of any internal overheads incurred as part of the proceeding costs;
(d) agreed to pay any adverse costs order; and
(e) agreed to provide security for costs.
Clause 9.2 of the funding agreement provided:
The lawyers will hold that part of the resolution sum[17] ordered by the Court as being due to [BSLLP] under this Agreement on trust for [BSLLP] and that part belonging to the plaintiff and all other members of the class Action on trust for each of them with the resolution sum to be dispensed in accordance with this [Agreement] and any Court order.
[17]The funding agreement defines ‘resolution sum’ as any money received, or payment made, to settle, compromise or resolve one or more or all of the claims.
Clause 12.1 of the funding agreement provided:
Subject to any necessary Court order, the plaintiff acknowledges and agrees that upon resolution, [BSLLP] is entitled to be paid from the resolution sum as follows:
12.1.1the case costs paid by [BSLLP] in relation to the class actions to which the resolution sum relates;
12.1.2a further amount, as Consideration for the financing of the Case and performance of [BSLLP] of its various obligations under this [Agreement], being a maximum of 30% of that Resolution Sum.[18]
[18]This clause is discussed further below. The further amount envisaged is referred to as the ‘uplift’.
The terms of settlement are confidential. BSLLP was a party to the settlement deed. Under the terms, the liquidators (being also the special purpose receivers) agreed to:
(a)support Bolitho’s application for settlement approval, including the claim by BSLLP for a payment to BSLLP of 25 per cent of the Bolitho settlement sum;[19] and
(b)not oppose Bolitho’s claim for reimbursement of legal costs and disbursements in the sum of $2.55 million, incurred by BSLLP on behalf of Bolitho, in respect of the claims which are the subject of the settlement.
[19]Pursuant to clause 12.1 of the funding agreement (copied above) BSLLP is entitled to claim a maximum of 30 per cent of that resolution sum (the Bolitho settlement sum) as a contractual right, from the group members who executed funding agreements.
Legal fees
The legal fees of the plaintiff in relation to the group proceeding are to be deducted from the settlement sum available to all group members. Given that the group members as a whole benefit from the legal costs incurred, the legal representatives of the plaintiff are entitled to their costs out of the settlement amount. The ‘legal costs should be borne by those who benefitted from those legal costs being incurred — the group members as a whole.’[20] However, pursuant to s 33V of the Supreme Court Act, the Court must be satisfied that the costs incurred are reasonable.[21]
[20]Modtech Engineering Pty Ltd v GPT Management Holdings [2013] FCA 626, [24] (‘Modtech (No 1)’).
[21]See Redfern v Mineral Engineers Pty Ltd [1987] VR 518.
The role of the Court in reviewing costs and administration expenses was described by J Forrest J in Downie[22] as follows:
[22]Downie [2015] VSC 190, [177]–[181].
The proceeding has been settled on an ‘all in’ or ‘inclusive’ of costs basis. Given that the group members as a whole benefit from the legal costs incurred, Ms Downie’s solicitor, Maurice Blackburn, is entitled to its costs out of the settlement amount.[23] However the court, in the exercise of its protective role under s 33V of the Supreme Court Act will scrutinise, at times closely, the quantum of those costs and any other deductions from the amount available to group members.
[23]Modtech (No 1) [2013] FCA 626 [24].
This is important for two reasons. First, as the costs are deducted from the settlement sum, it has the potential to affect the reasonableness of the settlement.[24] Secondly, the group members lack detailed information about the legal costs incurred so as to be able to challenge the plaintiff’s solicitor’s claimed costs.[25]
[24]Mathews v AusNet Electricity Services Pty Ltd [2014] VSC 663, [347] (‘Matthews’).
[25]Matthews [2014] VSC 663 [349]; Modtech (No 1) [2013] FCA 626 [27].
In determining whether to approve the deduction of costs from the settlement sum, courts must be satisfied that the costs claimed are ‘reasonable in the circumstances.’[26] This does not necessarily require a taxation of the costs claimed (although it may),[27] but rather the tendering of ‘sufficient’ evidence so as to enable the court to make an assessment as to whether the costs were reasonably incurred.[28] In group proceedings, usually this evidence will come from an independent solicitor or costs consultant.[29]
As noted by Gordon J in Modtech (No 1),[30] and Osborn JA in Matthews,[31] it is the Court, and not the independent costs expert who must determine whether fees and disbursements are reasonable. In this application, it is particularly important to be satisfied that the costs are reasonable because, as in Matthews,[32] the net amount available for distribution to group members will be affected by the amount deducted to pay Maurice Blackburn.
The factors to be taken into consideration in determining whether the costs claimed are reasonable will vary from case to case. Amongst other factors, it may be necessary to consider:
(a)whether the work in a particular area, or in relation to a particular issue, was undertaken efficiently and appropriately;
(b)whether the work was undertaken by a person of appropriate level of seniority;
(c)whether the charge out rate was appropriate having regard to the level of seniority of that practitioner and the nature of the work undertaken;
(d)whether the task (and associated charge) was appropriate, having regard to the nature of the work and the time taken to complete the task; and
(e)whether the ratio of work and interrelation of work undertaken by the solicitors and the counsel retained was reasonable.[33]
[26]Matthews [2014] VSC 663 [348]; Modtech (No 1) [2013] FCA 626 [32].
[27]Modtech (No 1) [2013] FCA 626 [32], cf A v Schulberg (No 2) [2014] VSC 258, [17] where Beach JA, having formed a ‘general view as to reasonableness’ based on expert costs evidence, stated that he would entertain an application for a taxation.
[28]Modtech (No 1) [2013] FCA 626 [34]–[35]; citing Re Medforce Healthcare Services Ltd (in liq) [2001] 3 NZLR 145, 155.
[29]Matthews [2014] VSC 663 [350].
[30]Modtech (No 1) [2013] FCA 626 [35].
[31]Matthews [2014] VSC 663 [355].
[32]Matthews [2014] VSC 663 [346]–[348].
[33]Modtech (No 1) [2013] FCA 626 [37]. Approved of in Matthews [2014] VSC 663 [352].
Initially, it was submitted by the amicus curiae that the evidence before the Court, on whether the legal costs and disbursements of $2.55 million was fair and reasonable, was insufficient.[34] As a consequence, a further affidavit of Mr Peter Trimbos was filed on 18 August 2016, containing a report and voluminous evidence concerning the legal fees sought.
[34]Amicus curiae submissions dated 1 August 2016.
On the question of costs, the authorities say that an appropriate balance needs to be struck between the costs of proving the reasonableness of costs incurred and establishing that they are in fact reasonably incurred. The amicus curiae submitted that the material before the Court was probably towards the minimal end of an analysis of the reasonableness of the costs. The amicus curiae said the evidence provided satisfied what Gordon J said in Modtech (No 1)[35] was required, in providing a statement of the work undertaken, together with a sufficiently itemised account of charges.[36]
[35]Modtech (No 1) [2013] FCA 626 [34]; citing Re Medforce Healthcare Services Ltd (in liq) [2001] 3 NZLR 145 [155].
[36]Transcript of hearing, Re Banksia Securities Limited (Rec & Mgr Apptd), 25 August 2016, T20.
The amicus curiae submitted that looking at the question in the broad, and taking into account the need to strike an appropriate balance between the level of information available on the one hand, and the costs associated with producing additional information, it was difficult for him to submit that the legal costs were unreasonable.[37]
[37]Transcript of hearing, Re Banksia Securities Limited (Rec & Mgr Apptd), 25 August 2016, T22.
As indicated above, it is the Court’s role to determine whether the fees and disbursements are reasonable, although the Court is assisted by the independent costs expert’s opinion.
After considering the affidavit material, I do not consider I should require further evidence to be provided. None of the parties urged that I obtain further evidence.
The material on legal costs prepared by Mr Trimbos and provided by the plaintiff addresses the following issues: whether the work undertaken was appropriate, was undertaken efficiently, and by a person of appropriate seniority; whether the charge out rate was appropriate; and whether the interrelation of the work undertaken by the solicitors and counsel was appropriate. Mr Trimbos deposes that, in his opinion, the costs incurred were reasonable and the work undertaken was appropriate. Mr Trimbos identifies invoices relating to work performed for non-settling defendants and invoices for which there was insufficient evidence to assess the reasonableness of the costs, and notes that these are excluded from his assessment.
The plaintiff also submits that the costs incurred are far less than the estimated legal costs of the settling defendants and in that context the costs should be considered to be reasonable.
After considering the material filed on costs and disbursements, I find that the costs and disbursements are reasonable.
Opt out notice
In June 2016, the Court ordered that an opt out notice be sent to all group members. The opt out notice informed group members of the proposed settlement of the Bolitho proceeding, that was subject to court approval. Group members were advised that:
Under the proposed settlement, the plaintiff will receive $5.2 million on his behalf and on behalf of group members who have not opted out. The proposed settlement involves the settlement sum being distributed as follows:
$2.55m for the payment of the Plaintiff’s legal costs attributable to the claims made against the settling Defendants;
$1.3m for the payment of a common funding fee to the Plaintiff’s litigation funder (which means that all debenture holders, including those who have not signed agreements to fund the class action are effectively required to pay, out of the settlement proceeds they would otherwise receive, a commission to the litigation funder); and
$1.35m being the balance of the settlement sum and which is equivalent to approximately 0.25 cents for each $1 of debentures held by the debenture holders (ie for each $100 of debentures you hold you will receive a distribution of approximately 25 cents; for each $1000 of debentures that you hold you will receive a distribution of approximately $2.50).
The notice also advised that:
In conjunction with the application for the approval of the proposed settlement, the plaintiff will also apply to the Court for approval of a payment, by way of “a common funding fee” of $1.3m to the Litigation Funder. This application will be made pursuant to s 33ZF of the Supreme Court Act 1986 (Vic) which permits the Court to make any order which it thinks appropriate or necessary to ensure that justice is done in the proceeding.
As discussed above, about 5 per cent of the group members opted out of the group proceeding after the opt out notice was circulated in June 2016. They remain at liberty to take what proceedings they think fit. I was informed by the plaintiff that no group members had stated to the plaintiff that they objected to the proposed settlement.[38]
[38]Plaintiffs’ supplementary submissions dated 18 August 2016, [24(c)]. Whilst this factor is relevant and significant, it is by no means determinative. As Wigney J explained in Blairgowrie [2015] 325 ALR 539 [181]: ‘[t]he more important point is that the fact that no group member has opposed the proposed order does not relieve the Court of the obligation to consider whether it is in the interests of group members. Nor does it establish that the proposed order is in the best interests of group members.’
Is the settlement of the Bolitho proceeding fair and reasonable?
As mentioned, the debenture holders have already received some 80 cents in the dollar from moneys recovered. Approximately $133 million of principal remains owing to the debenture holders.[39]
[39]Transcript of hearing, Re Banksia Securities Limited (Rec & Mgr Apptd), 4 August 2016 T25, 39.
The case is large and complex. The matter had been set down for a 12-week trial (now estimated 10-week trial commencing February 2018). I was informed that there are 7,000 pages of witness statements and affidavits, and the documentary evidence relied on at the trial will be extensive.
The settlement is taking place at a relatively early stage in the proceeding, which will save a great deal of expense for all parties.
It is usual in considering a proposed settlement of a group proceeding for the court to make an assessment of the strength and weaknesses of the plaintiff’s case and the defence of the defendants.
I think common sense suggests that if a banking type institution falls into insolvency whilst still raising money from the public, there may be grounds for good claims against some of those involved in the institution.
However, the most important consideration in the proposed settlement is not the strength and weaknesses of the respective cases but the ability of the defendants to pay any award of damages to the debenture holders. It is unnecessary to assess the evidentiary or legal issues on liability or quantum, which is the role of the trial judge, and in view of the extant action against Trust Co, and Trust Co’s third party claims against the directors and auditors it would be inappropriate to do so.
The sums paid by the directors and auditors do not exhaust all their insurance cover. In light of the third party claims, the insurers of the directors and the auditors (settling defendants) have reserved amounts in order to enable them, as best they can, to fight those claims.
It is submitted on behalf of Bolitho that in this case, the settlement presents a pragmatic resolution to claims made against defendants with limited assets. The settling defendants say that they can provide no more than has been offered. The contributions to the overall settlement sum have been disclosed in the joint opinion but are to be kept confidential.
The joint opinion described how and why the quantum of the settlement exhausts the available insurance in respect of the proceedings.
The plaintiff submits that the reasonableness of the Bolitho settlement must therefore be informed by how much the defendants have to give. The plaintiff submits that even if there is no doubt that a plaintiff will succeed on all issues, a defendant’s limited means will justify an early settlement for a fraction of the sum claimed.
As mentioned earlier, the claim made by the group members is some $133 million, being the outstanding face value of the debentures. In the course of the receivership some 80 cents in the dollar has been paid to the debenture holders, which is taken into account in reaching the $133 million. Originally some $663 million was due on the debentures.
Although the loss suffered by BSL and the debenture holders is similar, the basis of their claims differ. BSL alleges breaches of duties owed by the directors and auditors to BSL. The debenture holders were owed moneys in debt.
The BSL settlement sum is greater than the Bolitho settlement sum. That is due to the additional parties to the BSL proceedings that the debenture holders in the Bolitho proceeding did not have a claim against.
The settlement is conditional upon each proceeding settling.
Subject to the ‘uplift’ issue, I am satisfied that the Bolitho settlement is fair and reasonable and in the interests of group members as a whole. There will be some insurance moneys left, but I accept that these are reasonable, in light of BSL and Trust Co’s third party claims against the settling defendants.
Litigation funder ‘uplift’
The return the funder receives as the recovery of costs and expenses is referred to as the ‘uplift’. The settlement deed does not provide for the distribution of the settlement moneys between the group members and the litigation funder. Accordingly, approval of the terms of settlement will not carry with it approval of the proposed distribution of the ‘uplift’ to the litigation funder.
The litigation funder had a contractual right with those group members who had signed a funding agreement to be paid an ‘uplift’ fee. On the other hand, the litigation funder has no contractual right to an ’uplift’ fee from the group members who have not signed a funding agreement.
Initially, the litigation funder was seeking to receive an ‘uplift’ from all group members, totalling $1.3 million pursuant to a Court Order under s 33ZF, and argued that to be justified, as the group members were put on notice of the litigation funder’s intentions in the above opt out notice.
Section 33ZF (copied above) allows the Court to make ‘any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding.’
It has been accepted in several authorities that the Court has power under s 33ZF to approve a settlement with the condition that all group members, whether or not they have entered into agreement with the litigation funder, bear part of the litigation funder’s fee.[40]
[40]See for example Pharm-A-Care [2011] FCA 277; Pathway Investments Pty Ltd v NAB [2010] VSC 625 (‘Pathway Investments’); Modtech (No 1) [2013] FCA 626; Money Max Int Pty Ltd (as trustee for the Goldie Superannuation Fund) v QBE Insurance Group Ltd [2016] FCAFC 148 (‘Money Max’).
Two methods of calculating and apportioning the ‘uplift’ have been canvassed in the authorities. The ‘common fund’ method is for the funder to receive a certain percentage of the sum recovered for the group members irrespective of whether or not members of the group agreed to a funding agreement with the funder.[41]
[41]Bolitho submits that the common fund method was adopted by Pagone J in Pathway Investments [2010] VSC 625; Re Timbercorp Securities Ltd (in liq) [2012] VSC 590; Farey v National Australia Bank [2014] FCA 1242. In the amicus curiae reply submissions dated 23 August 2016, the amicus curiae submits that none of these cases support the proposition that the common fund approach should be preferred in this case.
An alternate method, known as the ‘funding equalisation formula’, differentiates between those group members who have signed a funding agreement and those who have not.[42]
[42]This formula was adopted by Gordon J in Modtech (No 1) [2013] FCA 626.
Under the funding equalisation formula the litigation funder only receives their contractual entitlement to the ‘uplift’ from the settlement sum from the members who did sign a funding agreement. The moneys that are not paid to the litigation funder by those members who did not sign a funding agreement are shared equally by all group members, such that the group members who have not signed a funding agreement, do not receive a windfall gain over those who have signed the funding agreement. All group members, whether or not they have agreed to pay the consideration, share equally in the balance of the settlement sum.
As was noted above, it has been recognised in several decisions that those group members who provide funding under the terms of a funding agreement should not be left worse off than those group members who did not sign the agreement. The funding equalisation formula achieves that end.
Approval of ‘uplift’
Under clause 12.1 of the funding agreement, the funder was entitled to receive a maximum of 30 per cent on the sum recovered from those who signed the funding agreement.
At the hearing on 25 August 2016, counsel for Bolitho informed the Court that if the settlement could be approved the plaintiff would accept $858,000 ‘uplift’ rather than the $1.3 million, (which was calculated at 25 per cent of the $5.2 million Bolitho proceeding settlement sum on the common fund method).[43]
[43]Whether this method would have been accepted was questionable, even if it was considered appropriate or necessary to ensure that justice is done in the proceeding. The amicus curiae questioned whether s 33ZF permits the Court to make an order which has the effect of creating contractual rights between group members who have not signed a funding agreement and the litigation funder. The amicus curiae, citing Blairgowrie [2015] 325 ALR 539, [107]–[108] (Wigney J), noted that an order for a common fund ‘uplift’ fee may raise constitutional issues if it amounted to the acquisition of property on unjust terms, or involved the exercise by the Court of non-judicial powers.
The sum of $858,000 was calculated as 30 per cent (contractual entitlement) × 55 per cent (being the proportion of group members who signed a funding agreement) × $5.2 million (the total Bolitho settlement sum).[44]
[44]This is equivalent to calculating the sum that would have been paid to the litigation funder by the group members who have not signed the funding agreement, (if they had signed the funding agreement) and subtracting that sum from the litigation funder ‘uplift’ (and adding it to the pool available for distribution amongst all the group members).
Accordingly, it is not necessary for me to express an opinion on the appropriateness of the common fund method as opposed to the fund equalisation method.[45]
[45]I note in passing that since the hearing of this proceeding, the Full Court of the Federal Court has given a decision on the issue in Money Max [2016] FCAFC 148.
The authorities establish that the Court does have power under s 33ZF to make an order that an ‘up lift’ be paid to the litigation funder that goes beyond the litigation funder’s contractual entitlement with group members, so long as the Court thinks the order appropriate or necessary to ensure that justice is done in the group proceeding, in approving a settlement of the group proceeding.[46]
[46]Money Max [2016] FCAFC 148; Modtech (No 1) [2013] FCA 626.
The scope of the power is important as ‘[t]here is no provision in the [Federal Court Act], or any other Act, which specifically empowers the court to make an order approving, or declaring as reasonable, amounts that a representative party has agreed to pay pursuant to a commercial litigation funding agreement. Still less is there a specific provision empowering the court to make an order declaring that the representative party is ‘entitled’ to retain or deduct amounts that they have agreed to pay to the litigation funder from amounts that would otherwise be recoverable by, and payable to, group members as a whole.’[47]
[47]Blairgowrie [2015] 325 ALR 539 [96].
The Court’s power under s 33ZF of the Supreme Court Act is broad, although not unlimited. As Beach J said in Earglow Pty Ltd v Newcrest Mining Ltd, ‘any exercise of power has to fit within the statutory formulation.’[48]
[48](2015) 324 ALR 316 [33].
The plaintiff submitted that it was appropriate and necessary to ensure that justice is done in the proceedings as provided in s 33ZF to allow the litigation funder to be paid a compensation amount for funding the proceeding on behalf of the plaintiff due to the risks involved in funding the proceeding; the amount paid by way of security of costs; the funder acted in the interests of all group members; the proceeding would not have progressed without the funder.
The commercial risks would have all been taken into account by the litigation funder in determining whether to proceed with funding the proceeding and given that the litigation funder had a right to terminate the funding, the funder agreed to assume the risks and are not relevant to s 33ZF.
It is, however, relevant that the litigation funder facilitated access to justice for many debenture holders with a relatively small amount of individual loss and where it is recognised that the affected group members do not have the financial resources to provide funding. Many of the debenture holders in the Bolitho proceeding are from rural communities and are retirees whose retirement funds suffered as a result of the collapse of BSL.
Without the litigation funder funding the proceeding and providing the security of costs, the opportunity of the group members to vindicate their rights would very likely have been lost. It is proper and usual practice to allow an ‘uplift’ on the fees payable.[49] If the litigation funder was left to its contractual entitlement, and if the settlement were approved, it would receive the sum it will now receive, but the burden of the ‘uplift’ would fall solely on the group members who signed funding agreements. In my view, that would be not ensure that justice was done in the proceeding for the obvious reason that the group members who did not sign a funding agreement would get an unfair share of the proceeds at the expense of the group members who signed a funding agreement.
[49]Matthews [2014] VSC 663 [382].
Accordingly, I find the ‘uplift’ fee so calculated by the plaintiff is appropriate and necessary to ensure that justice is done in the proceedings, as provided for in s 33ZF.
I find that the settlement including the order for payment of $858,000 to the litigation funder from the moneys recovered from the settling defendants in the Bolitho proceeding, is fair and reasonable and in the interests of all group members.
The special purpose receivers’ application
By originating process dated 3 June 2016, the special purpose receivers made an application under s 424(1) of the Corporations Act 2001 (Cth) seeking directions that they are justified, and otherwise acting reasonably and appropriately in causing BSL to settle its claims in the BSL proceedings.
In response to the submissions of the amicus curiae, that the Court’s jurisdiction to make the directions sought is derived from the s 37 of the Supreme Court Act, and in view of the limits placed on the Court’s ability to sanction the commercial judgment of receivers; at the 4 August 2016 hearing, the special purpose receivers applied to amend the originating process to rely upon the Court’s inherent jurisdiction to give directions to Court-appointed receivers, and amended the form of the direction to that they were justified in settling the BSL proceedings on the terms set out in the settlement deed.
Special purpose receivers justified in seeking directions
As to whether the special purpose receivers were acting appropriately in seeking the directions from the Court, it is noted the settlement deed provides, at clause 7.2.3, that settlement is subject to and conditional upon the Court ‘making such orders as are necessary approving nunc pro tunc the entry into’ the settlement deed by the special purpose receivers.
I agree with the submissions of the amicus curiae that given the complexity of the issues involved and the potential that the settlement may be open for challenge, this is a case in which the special purpose receivers are justified in seeking the assistance of the Court.[50]
[50]Submissions by amicus curiae dated 1 August 2016 [16], [23].
Authority of the special purpose receivers to settle the BSL proceeding
The special purpose receivers query whether the powers given under the orders of Black J authorise the special purpose receivers to enter into the settlement deed.[51]
[51]The special purpose receivers note in their submissions dated 15 July 2016, [26], that the orders made by Black J on 30 September 2015 were that the special purpose receivers (whilst also retaining their ability to act as liquidators) had exclusive power to ‘prosecute and defend’ the BSL proceeding commenced by the receivers. The receivers were to retain control of all other matters arising in the receivership, except for the conduct of the proceedings. Thus creating a potential limitation to the special purpose receivers’ power to ‘settle’ the BSL proceeding. Citing Re GDK Financial Solutions Pty Ltd [2006] 236 ALR 699 [27]–[28]; The University of Western Australia v Gray (No 6) [2006] FCA 1825 [29]; ASIC v Letten (No 6) [2010] FCA 1048 [30]; Australian Executor Trustees Ltd v Provident Capital Ltd [2013] FCA 1461 [31].
Cases referred to by the special purpose receivers, wherein the receivers were found to have such power, involved instruments that expressly provided for an authority or power in special purpose receivers to ‘settle’ or ‘resolve’ the relevant litigation. It is submitted by the amicus curiae that it is ‘abundantly clear’ from the authorities that receivers only have authority to act in a manner directed by the court and must not exceed the prescribed limits.[52]
[52]Submissions of the amicus curiae dated 1 August 2016 [30]; citing Glazier Holdings Pty Ltd v Australian Mens Health Pty Ltd BC9801774 (NSWSC, Young J, 20 April 1998, unreported); Rosanove v O’Rourke [1998] 1 Qd R 171; Re GDK Financial Solutions Pty Ltd [2006] 236 ALR 699.
Section 37 of the Supreme Court Act is the source of this Court’s power to appoint a receiver and to give the receiver the powers to deal with the property that the receiver takes possession of.[53] The section also confers on the Court the implied power to give directions as to the exercise and discharge of those powers.[54]
[53]Re GDK Financial Solutions Pty Ltd [2006] 236 ALR 699 [29].
[54]Mariconte v Batiste (2000) 48 NSWLR 724, 737 [75] (Austin J).
The amicus curiae submitted that as a matter of construction, and in the absence of express authority, Black J’s order cannot safely be read as extending to authorising the special purpose receivers to enter into the terms of settlement.
To remove any doubt I made an order expressly conferring such power on the special purpose receivers.
Settlement of the BSL proceeding
The appointment of the special purpose receivers was made on the application of the trustee, and the appointment was made in respect of specified property of BSL, being the rights and entitlements of BSL which are the subject of the special purpose receivers’ proceeding and the subject of the Bolitho proceeding. On 29 February 2016, Black J varied the 30 September 2015 orders, inter alia, to extend the property over which the special purpose receivers were appointed to include the liquidators’ proceeding and order the receivers release funds to the special purpose receivers for the payment of specified costs and expenses related to the proceedings.
The costs of the BSL proceeding and the liquidators’ proceeding (which is not a part of the partial settlement) are the responsibility of the receivers. Any such costs not recovered from the defendants may affect any future distributions to debenture holders as although debenture holders are not directly liable for any costs of the special purpose receivers’ proceeding (or the liquidators’ proceeding), debenture holders would, in effect, bear any costs that are not recovered from the defendants through a reduction in any future distributions.
There is the possibility that settlement moneys from the BSL settlement sum could make its way to the debenture holders, after costs of the receivers and of the special purpose receivers’ application have been met.
The special purpose receivers are of the view that the settlement sum in the BSL proceeding is fair and reasonable. That is their commercial judgment based on the advice of their legal advisers. On the material presented to me I have no reason to disagree with their decision. Accordingly, I find that the receivers are justified in settling the BSL proceeding on the terms proposed.
For these reasons I made orders sought, as copied above.
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