| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
GROUP PROCEEDINGS LIST
S ECI 2020 00306
| DAVID SHIMSHON | First Plaintiff |
| JULIAN COUGAN | Second Plaintiff |
| v | |
| MLC NOMINEES PTY LTD (ACN 002 814 959) | First Defendant |
| NULIS NOMINEES (AUSTRALIA) LTD (ACN 008 515 633) | Second Defendant |
| and | |
| MERVYN LAWRENCE BRADY | Proposed Intervener |
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JUDGE: | Waller J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 April 2025 |
DATE OF RULING: | 11 April 2025 |
CASE MAY BE CITED AS: | Shimshon v MLC Nominees Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2025] VSC 208 |
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PRACTICE AND PROCEDURE — Group proceedings — Settlement approval — Non-party application to intervene — Applicant in separate Federal Court group proceeding seeking to inspect settlement deed and intervene in settlement approval application or have a contradictor appointed — Whether applicant has direct interest in settlement — Whether intervention would assist court — Principles governing intervention by non-parties in group proceedings — Application of Bauer Media Pty Ltd v Wilson [2018] VSCA 68 test — Scope of s 33ZF of Supreme Court Act 1986 (Vic) — Fiduciary duty of representative plaintiff — Confidentiality of settlement deed — Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | R Howe | Maurice Blackburn Lawyers |
| For the Defendant | G Ayres | Allens |
| For the Proposed Intervener | S Habib SC with M Gvozdenovic | William Roberts Lawyers |
HIS HONOUR:
This application concerns whether Mervyn Lawrence Brady (‘Mr Brady’), the applicant in a separate Federal Court group proceeding, should be granted leave to inspect a confidential settlement deed and intervene in the settlement approval application in the present proceeding, or alternatively, have his senior counsel and solicitor appointed as contradictors.
The settlement approval hearing in this proceeding is fixed for 16 April 2025. It is therefore necessary that I determine this discrete non-party application with some urgency. As a consequence, this ruling is more concise than would otherwise be the case.
BACKGROUND[1]
[1]The facts set out below are drawn from the Statement of Agreed Facts emailed to the Court on 9 April 2025.
Before 1 July 2016, Mr Brady was a member of The Universal Superannuation Scheme Fund (‘TUSS’), the trustee of which was the first defendant, MLC Nominees Pty Ltd.
On 1 July 2016, the members of TUSS, including Mr Brady, were transferred by a successor fund transfer to the MLC Super Fund, the trustee of which was NULIS Nominees (Australia) Limited (‘NULIS’).
Mr Brady brought proceedings under Part IVA of the Federal Court of Australia Act 1976 (Cth) on his own behalf and as a representative party for and on behalf of certain members of the MLC Super Fund whose memberships and benefits were transferred on 1 July 2016 by the successor fund transfer to the MLC Super Fund.
Mr Brady sought damages or equitable compensation (or at their election restoration of their superannuation accounts) from NULIS for amounts that he and group members allegedly lost as a result of being charged fees from 1 July 2016 to…
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- Case
- [2025] VSC 208
- Decision Date
CaseChat Overview and Summary
The court found that Shimshon did not have a direct interest in the settlement as it was not a party to the proceeding. The court held that intervention would not assist the court in determining the application for approval. The court applied the Bauer Media test and held that Shimshon did not meet the threshold for intervention. The court held that the fiduciary duty owed by the representative plaintiff did not extend to Shimshon and that the confidentiality of the settlement deed was a significant factor in the decision. The court dismissed the application.
In summary, Shimshon was not granted leave to inspect the settlement deed or to intervene in the application for approval of the settlement. The court found that Shimshon did not have a direct interest in the settlement and that intervention would not assist the court. The principles governing intervention by non-parties in group proceedings were applied, and the court held that Shimshon did not meet the threshold for intervention. The fiduciary duty owed by the representative plaintiff and the confidentiality of the settlement deed were also considered. The application was dismissed, and no orders were made in favour of Shimshon.
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