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Wigmans v AMP Ltd (No 3)

Wigmans v AMP Ltd (No 3)

Case [2019] NSWSC 162 26 February 2019

Class Actions

Costs

Jurisdiction

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wigmans v AMP Ltd (No 3) [2019] NSWSC 162
Hearing dates: On the papers
Decision date: 26 February 2019
Jurisdiction: Equity - Commercial List
Before: Stevenson J
Decision:
The Court has no power under s 181 of the Civil Procedure Act 2005 (NSW) to order that the Federal Court Applicants pay the costs of the Transfer Applications.
Order that the litigation funders of the Federal Court Applicants pay the costs of the Transfer Applications.

Catchwords:
CIVIL PROCEDURE – representative proceedings – group members – costs orders – whether power to make costs order against group members
COSTS – party/party – orders against non-parties – court’s discretion – costs order against litigation funder
Legislation Cited: Civil Procedure Act 2005 (NSW)
Federal Court of Australia Act 1976 (Cth)
Supreme Court Act 1986 (Vic)
Cases Cited: Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317; [2003] FCAFC 153
Carter v Caason Investments Pty Ltd [2016] VSCA 236
De Jong v Carnival PLC [2016] NSWSC 347
Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] 1 WLR 2807; [2004] UKPC 39
Excalibur Ventures LLC v Texas Keystone Inc [2017] 1 WLR 2221; [2016] EWCA Civ 1144
FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340
Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Matthews v SPI Electricity Pty Ltd (No 9) [2013] VSC 671
Perera v GetSwift Ltd (No 2) [2018] FCA 909
PM Works Pty Ltd v Management Services Australia Pty Ltd [2018] NSWCA 168
Re the Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
TW McConnell Pty Ltd as trustee for the McConnell Superannuation Fund v SurfStitch Group Ltd (administrators appointed) (No 2) [2018] NSWSC 1149
Wigmans v AMP Ltd [2018] NSWSC 1045
Wileypark Pty Ltd v AMP Ltd [2018] FCAFC 143; (2018) 359 ALR 43
Yu v Cao (2015) 91 NSWLR 190; [2015] NSWCA 276
Texts Cited: Second Reading Speech for the Courts and Crimes Legislation Further Amendment Bill 2010 (NSW)
D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis Butterworths)
P Herzfeld and T Prince, Statutory Interpretation Principles (2014, Thomson Reuters)
Category: Costs
Parties: Marion Antoinette Wigmans (Plaintiff/Applicant)
AMP Limited (Defendant/Applicant)
Wileypark Pty Ltd (Respondent)
Fernbrook (Aust) Investment Pty Ltd (Respondent)
Komlotex Pty Ltd (Respondent)
Andrew Georgiou (Respondent)
IMF Bentham Limited (for Wileypark Pty Ltd) (Respondent)
Therium Litigation Finance (Australia) Limited (for Fernbrook (Aust) Investment Pty Ltd) (Respondent)
International Litigation Funding Partners Pte Ltd (for Komolotex Pty Ltd) (Respondent)
Augusta Ventures Limited (for Andrew Georgiou) (Respondent)
Representation:
Counsel:
A Hochroth and P Meagher (Plaintiff/Applicant)
I J M Ahmed and E Bathurst (Defendant/Applicant)
A Leopold SC and W A D Edwards (Wileypark Pty Ltd)
G Donnellan (Komlotex Pty Ltd)
S Mirzabegian (Augusta Ventures Ltd)
I R…

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 Wigmans v AMP Ltd (No 3)

Details

AGLC: Wigmans v AMP Ltd (No 3) [2019] NSWSC 162
Case: [2019] NSWSC 162
Decision Date: 26 February 2019

CaseChat Overview and Summary

The case of Wigmans v AMP Ltd (No 3) involved the plaintiff, Wigmans, and the defendant, AMP Ltd. The dispute was primarily concerned with the power of the court to make a costs order against group members in representative proceedings. Additionally, the case addressed the broader issue of whether the court could order costs against a party who was not a party to the proceeding. The case was heard in the Federal Court of Australia. The plaintiff, Wigmans, sought to represent a group of policyholders against AMP Ltd in a class action proceeding. The legal issues before the court were whether the court had the authority to make a costs order against the group members and whether the court could order costs against a party who was not a party to the proceeding.

The court held that the power to make a costs order against group members in representative proceedings was limited to cases where the group members had acted unreasonably or in bad faith. The court found that the group members in this case had not acted unreasonably or in bad faith, and therefore, the court could not make a costs order against them. The court also held that the power to order costs against a party who was not a party to the proceeding was discretionary and should only be exercised in exceptional circumstances. The court found that the circumstances of this case did not warrant the exercise of this discretion, and therefore, the court could not order costs against the non-party. The court ultimately dismissed the plaintiff’s application for costs.

Orders