Shimshon v MLC Nominees Pty Ltd (Settlement Approval) - [2025] VSC 249

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

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JUDGE:	Waller J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2025
DATE OF JUDGMENT:	12 May 2025
CASE MAY BE CITED AS:	Shimshon v MLC Nominees Pty Ltd (Settlement Approval)
MEDIUM NEUTRAL CITATION:	[2025] VSC 249

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PRACTICE AND PROCEDURE – Group proceeding – Settlement approval – Superannuation trustees – Statutory and general law duties – Failure to transition accrued default amounts – Application to approve settlement and distribution scheme – Approval of legal costs – Approval of settlement administration costs – Approval of plaintiff reimbursement payments – Appointment of administrator – Confidentiality – Supreme Court Act 1986 (Vic) ss 33V, 33ZB, 33ZF – Practice Note SC GEN 10 – Settlement approved.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	K Loxley with R Howe	Maurice Blackburn Lawyers
For the Defendants	K Foley SC with G Ayres	Allens

TABLE OF CONTENTS

A.. INTRODUCTION........................................................................................................................ 1

B.. PROCEDURAL HISTORY......................................................................................................... 2

Separate question and appeal..................................................................................................... 2
Trial preparation........................................................................................................................... 3
Opt-out............................................................................................................................................ 4
Mediation....................................................................................................................................... 4
Objections....................................................................................................................................... 4
Non-party application.................................................................................................................. 5

C.. SUMMARY OF THE CLAIMS.................................................................................................. 5

D.. PROPOSED SETTLEMENT...................................................................................................... 6

E... MATERIALS RELIED UPON BY THE PLAINTIFFS........................................................... 7

F... OBJECTIONS............................................................................................................................... 9

G.. LATE OPT-OUTS....................................................................................................................... 10

H.. LEGAL PRINCIPLES................................................................................................................ 10

I.... FAIRNESS AND REASONABLENESS OF THE PROPOSED SETTLEMENT............ 12

Fairness as between the parties................................................................................................. 12
Fairness as between group members....................................................................................... 13

J.... LEGAL COSTS AND DISBURSEMENTS AND SETTLEMENT ADMINISTRATION COSTS........................................................................................................................................................ 17

K.. PAYMENTS TO THE PLAINTIFFS....................................................................................... 22

L... CONCLUSION AND ORDERS.............................................................................................. 22

HIS HONOUR:

A. INTRODUCTION

The Court is asked to approve a proposed settlement of a group proceeding under s 33V and s 33ZF of the Supreme Court Act 1986 (Vic) (the ‘Act’) brought against MLC Nominees Pty Ltd and NULIS Nominees (Australia) Ltd.

Under the proposed settlement, the defendants are to pay the sum of $64.25 million in settlement of the claims of the plaintiffs and group members (‘Settlement Sum’). The Settlement Sum, together with interest accruing on it, is proposed to be distributed on the terms described in the Settlement Distribution Scheme (‘SDS’), following the deduction of amounts representing the plaintiffs’ legal costs, settlement administration costs and plaintiff reimbursement payments.

This proceeding concerns claims arising out of alleged breaches by the defendants of their statutory and general law obligations in the management of superannuation assets held in the Masterkey Business Super and Masterkey Personal Super products within The Universal Super Scheme (‘TUSS’) for which they were trustees.

The plaintiffs claim compensation for themselves and on behalf of the group on the basis that the defendants failed to effect the government mandated transition of accrued default amounts (‘ADAs’) to MySuper, a simple, lower fee superannuation product, as soon as reasonably practicable, and that this resulted…

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.

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Details

Case: [2025] VSC 249
Decision Date: 12 May 2025

CaseChat Overview and Summary

The case before the court involved Shimshon, a plaintiff, and MLC Nominees Pty Ltd, a superannuation trustee, concerning a dispute over the failure to transition accrued default amounts. The matter was brought as a group proceeding in the Supreme Court of Victoria. Shimshon sought approval for a settlement and distribution scheme, reimbursement of legal costs, settlement administration costs, and plaintiff reimbursement payments, as well as the appointment of an administrator. The court was required to consider whether the settlement was fair, reasonable, and in the best interests of the affected members.

The primary legal issues revolved around the interpretation and application of statutory and general law duties of superannuation trustees, specifically in relation to the transition of accrued default amounts. The court had to determine whether the settlement and distribution scheme was fair and reasonable and whether the costs associated with the settlement and administration should be approved. Furthermore, the court considered the appointment of an administrator and the need for confidentiality in handling the sensitive information of the affected members.

The court found that the settlement was fair, reasonable, and in the best interests of the affected members. It approved the legal costs, settlement administration costs, and plaintiff reimbursement payments as being reasonable and necessary. The court also appointed an administrator to oversee the distribution of the settlement funds. The court emphasised the importance of confidentiality in handling the sensitive information of the affected members, and directed that appropriate measures be taken to protect the privacy of the members throughout the settlement process.

The settlement was approved, with the court ordering the distribution of the settlement funds to the affected members, the payment of approved costs, and the appointment of an administrator. The court also ordered that confidentiality measures be implemented to protect the privacy of the affected members.

Orders