Shimshon v MLC Nominees Pty Ltd - [2025] VSC 208

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

---

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

---

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.

---

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…

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.

Keep reading for free

Create a free CaseChat account to read Shimshon v MLC Nominees Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] VSC 208
Decision Date: 11 April 2025

CaseChat Overview and Summary

The case of Shimshon v MLC Nominees Pty Ltd involved a group proceeding in the Supreme Court of Victoria. Shimshon, the applicant, sought either to inspect a settlement deed in another group proceeding or to intervene in the application for approval of the settlement or to have a contradictor appointed. Shimshon was not a party to the group proceeding but was a plaintiff in a separate group proceeding brought against the same defendants. The legal issues before the court were whether Shimshon had a direct interest in the settlement and whether intervention would assist the court in determining the application for approval. The court had to consider the principles governing intervention by non-parties in group proceedings, particularly the test set out in Bauer Media Pty Ltd v Wilson [2018] VSCA 68, and the scope of section 33ZF of the Supreme Court Act 1986 (Vic). The court also needed to consider the fiduciary duty owed by the representative plaintiff in the group proceeding and the confidentiality of the settlement deed.

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.

Orders