Australian Competition and Consumer Commission v Chats House Investments Pty Ltd

The Proceedings 3The proceedings concern investments in PINs (Principal Protected Income Notes) an investment product issued by Absolute Capital Investment Limited (in liq) (ACIL) in two series in May 2003 and January 2004 of which the second defendant (Joubert) was Managing Director. 4The proceedings were brought by the first and second plaintiffs (Trustee) which applied for and held the PINs. In addition and out of abundant caution the third and fourth plaintiffs (Mitchell and Manns) sued in a representative capacity pursuant to Uniform Civil Procedure Rules (2005) (NSW) (UCPR) rule 7.4 (now governed by part 10 of the Civil Procedure Act 2005 (NSW) (CPA)) on behalf of 309 persons who held units in either a superannuation master trust or an investor directed portfolio service operated by the Trustee (the Investors). 5The Investors in both cases were generally persons of advanced age who invested their retirement savings into their superannuation fund and/or sought to receive regular pension payments. 6The first defendant, The Royal Bank of Scotland NV (which was formerly known as ABN AMRO Bank NV) (ABN AMRO) was a party to the core transactions underlying the PINs and was the "principal protection provider" in respect of the 2003 PINs and the "security deposit holder" in respect of the 2004 PINs and consented to be named in information memoranda issued by ACIL. 7The 2003 PINs were unsecured notes with a five year term, which paid a coupon rate of 8% per annum paid quarterly. The five year term ended in June 2008. The 2004 PINs were unsecured notes with a five year term which paid a coupon rate of 7.5% per annum paid quarterly. That five year term ended in February 2009. Quarterly coupon payments for the 2003 PINs and the 2004 PINs were received by the Trustee until September 2007 since which time no quarterly coupon payments have been made by ACIL in respect of the 2003 PINs or 2004 PINS. 8The plaintiffs alleged that the defendants engaged in misleading or deceptive conduct or conduct likely to mislead or deceive by failing to disclose the true nature and effect of the underlying transactions to the PINs (primarily in relation to the principal protection), including through the information memoranda, which are also alleged to have conveyed representations that were misleading or deceptive. The plaintiffs sought damages for conduct in contravention of the Trade Practices Act 1974 (Cth) (TPA), the Corporations Act 2001 (Cth), the Australian Securities and Investments Commission Act 2001 (Cth) and the Fair Trading Act 1987 (NSW) as pleaded in the Further Amended Commercial List Summons and a Further Amended Commercial List Statement filed on 9 June 2010. 9ABN AMRO and Joubert denied the allegations in the proceedings and themselves cross claimed against each other and the Trustee for alleged breach of trust and against the financial adviser who promoted the product, Paulwen Holdings Pty Ltd trading as Financial Structures (Financial Structures) and two principals of that business, Paul Plummer and Rick Isachsen (Plummer and Isachsen). The Trustee and each of the cross defendants denied liability on the Cross Claims. 10Each information memorandum and some earlier related documents contained the express representation that the funds raised would be invested by ACIL to generate interest payable at a fixed rate (8% pa for 2003 and 7.5% pa for 2004) quarterly over the five year term. It was also represented that an important feature of the investment was that it was "principal protected", in that ABN AMRO had agreed to provide an undertaking to pay up to 25% of the value of the principal in the event that on maturity there was a shortfall in the capital repayment by ACIL to the PINs Investors. ABN AMRO approved the final version of each information memorandum. 11The main question with respect to liability in the proceedings was whether the information memoranda and drafts were misleading or deceptive or likely to mislead or deceive, having regard to the contractual arrangements that were in fact put in place on and from 29 May 2003 between ACIL, ABN AMRO and a third party, Cederra Structured Investments Limited (In Liquidation) (Cederra) (also a member of the Absolute Capital Group and of which Mr Joubert was a director), to create the PINs product. The day after the issue of the PINs, ACIL lent the PINs monies to Cederra, as the vehicle established to invest the monies raised by the PINs. 12The plaintiffs contended that the effect of the transactions to be entered into by Cederra with ABN AMRO was not disclosed to Oasis Asset Management Limited (OAM) or the 2003 Investors prior to the offer of the 2003 PINs. The 2003 Information Memorandum and the earlier documents referred to the PINs as 'Principal Protected Income Notes', stated that ACIL 'aimed to preserve capital', referred to an undertaking by ABN AMRO to pay up to 25% of the Principal Amount of the PINs, and stated that '[t]he amount raised will be invested to create exposure to a portfolio of loans, financing facilities and other structured investments...'. However these documents did not disclose that ABN AMRO's undertaking was secured by a cash deposit of 25% of the Principal Amount made by Cederra with ABN AMRO. As the 25% on deposit was able to earn interest at a limited rate of around 4.8%, only 75% of the Principal Amount was actually available to generate the return of 8% per annum payable quarterly to the 2003 Investors. Similar contentions are made with respect to the 2004 PINs. 13The thrust of the case was that the information memorandum and earlier documents created the impression that 100% of the funds invested were working towards generating the 8% return required, and in addition, the product had a principal protection feature in that ABN AMRO was assuming the risk of any loss of principal up to 25%. In fact, in effect, 75% of the amount invested was applied towards generating the required 8% return. The remaining 25% was held by ABN AMRO in cash and which itself generated only a very limited return. ABN AMRO was therefore assuming no risk because it held the balance (26%) in an account as security for its "principal protection". 14The case against Mr Joubert was made on the basis that he was the managing director of ACIL and was aware of the contents and involved in the drafting of the information memoranda and the actual structure of the investment. The case against ABN AMRO was made on the basis that ABN AMRO was also aware of the contents of the final information memoranda in respect of each of the 2003 PINs and the 2004 PINs and gave its consent to the references to ABN AMRO and to the feature of the product referred to as the 'Principal Protection', and was a signatory to the key contractual arrangements. ABN AMRO was also aware of the actual structure of the investments. 15Ultimately, an investment of $63,281,803 was made by OAM on 29 May 2003 in the 2003 PINs, at the direction of the 2003 Investors. The 2003 Investors received quarterly coupon payments at 8% per annum until June 2007 totalling $21,740,895, at which time the product failed. 16With respect to the 2004 PINs, $1,798,456.43 was invested by OAM at the direction of the 2004 Investors on 30 January 2004. They also received quarterly coupon payments at 7.5% per annum until June 2007 totalling $486,960. 17After the 2003 and 2004 PINs products failed and ACIL went into receivership and ultimately liquidation, no further monies were received by Oasis Fund Management Limited (OFM) on behalf of the PINs Investors other than the following amounts:

• $17,420,000 from ACIL's receivers in December 2007 representing a payment by ABN AMRO to the ACIL liquidators of the cash deposit monies held by it on account of Cederra;
• $475,000 from ACIL's receivers in December 2007; and
• $5,736,395 from ACIL's receivers in December 2011 representing a return on the sale of the underlying assets in the fund into which the PINs investment monies were placed. 18The plaintiff's case was effectively split into two separate cases:
• The Trustee Case, brought by OFM and OAM as present and former trustee of the superannuation trust and operator of the IDPS; and
• The Investor Case, brought by Mr Michell on behalf of the 2003 Investors and Mr Manns on behalf of the 2004 Investors. 19The proceedings were run as though the Trustee Case was the primary claim in the proceedings. This was done on the basis that if the Trustee succeeded the Investors as persons entitled under the Superannuation Trust Deed or the IDPS contracts the Investors would be beneficially entitled to the damages awarded to the Trustee. The Investor Case would therefore be secondary as there could be no double recovery. Only if for some reason the Trustee Case had failed would the claims of Mr Michell and Mr Manns on behalf of the 2003 Investors and 2004 Investors have required determination. 20Apart from the proceedings and any payment contemplated by the proposed settlement, the Trustee as secured creditor of ACIL received distributions from time to time from the liquidators of ACIL which represent monies obtained from the realisation of assets in the Absolute Capital Yield Strategies Fund, being the fund where the PINs investments were made by or on behalf of ACIL. These monies are separate to and do not form part of the settlement between the plaintiffs and the other parties. Any such monies received by the Trustee will be allocated from time to time to the Investors according to each Investor's entitlement.

Attempts to Resolve the Proceedings 21The Court made orders on 1 September 2009 referring the proceedings to mediation before the Honourable R V Gyles AO QC. That mediation was unsuccessful. 22However in early March 2010 the parties by agreement had further discussions before Mr Gyles. Again no agreement eventuated. Later again in 2010 pursuant to a consent order made by the Court the parties engaged in a second mediation which although did not eventuate in the settlement, during the course of the mediation the parties reached agreement. The parties entered a Deed of Settlement (the Deed) on 20 September 2011.

The Proposed Settlement 23Under the terms of the Deed and subject to the Court approving the settlement, the plaintiffs will receive payment of $19.5m (the Settlement Fund). 24The effect of the settlement is that the monies in the Settlement Fund be paid out and allocated as follows: Step 1 - to the Trustee in reimbursement of the legal costs, in the fixed amount of $3,470,607.83; Step 2 - to the Trustee for provision of legal costs that may be incurred in implementing the settlement, and any unanticipated claims by an Investor, in the fixed amount of $100,000; Step 3 - the balance to the Trustee to allocate to each of the Investors on a ratio of one to one (1 to 1) as relative values of a 2003 PIN compared to a 2004 PIN. 25The mechanism by which the allocation will be made to the accounts of each Investor will be by electronic transfer by the Trustee to the account of each of the Investors. 26The basis of the settlement was that all claims as well as the cross-claims were to be settled for $19.5 million inclusive of legal costs. The Deed is confidential between the parties to the settlement. In the notice, the group members were informed that they may obtain a copy of the Deed on the basis of providing a confidentiality undertaking, although it was noted that that part of the Deed that sets out the amounts that each party has contributed towards the settlement sum would be redacted in the copy of the Deed that is made available. It was requested that the individual contributions of each party be kept confidential. 27It was a pre-condition to settlement that all PINS investors support the proposed settlement, i.e. by not opting out. The Deed provided that if one or more Investors opt out of the proposed settlement, then the settlement would not proceed, yet at that point the Deed permitted the parties to negotiate in good faith to determine if a settlement was nevertheless possible. Given that all 309 PINs Investors, being the totality of the group, had not opted out, and had returned signed Consent, Release and Acknowledgement Forms, this materiality condition has been satisfied. 28Investors had also been informed in the notice that Joubert and ABN AMRO had made claims in cross-claims, including against Oasis. No Investor has made any claim against Oasis. As part of the settlement, Oasis will obtain a release from the Defendants, however, Oasis is not obtaining any release from the Investors.

Court Approval is Necessary 29As these proceedings are representative proceedings the Court must approve the settlement pursuant to s 173 of the CPA. Section 173 is found in part 10 of the CPA. Part 10 was introduced in 2010 and came into operation on 4 March 2011. The provisions in part 10 are modelled on part IVA of the Federal Court Act 1976 (Cth) (CPA). Pursuant to s 156 (FCA), part 10 applies to proceedings commenced after 4 March 2011. However the effect of the transitional provisions is that the new part 10 extends to proceedings commenced (but not finally determined) in the Court under division 2 of part 7 of the rules before the commencement of the new part 10. These proceedings or at least the representative aspect of them were commenced under Division 2 of Part 7 of the UCPR and accordingly the new Part 10 applies to these proceedings. 30On 21 December 2011 the plaintiffs filed the notice of motion which sought approval of the proposed settlement. 31On 23 December 2011 the Court made orders approving various steps be taken in order to notify group members of the proposed terms and features of the settlement. 32The PINs investors as group members had until 20 February 2012 to respond to the notice and either consent to the process or opt out. 33As at 21 February 2012 the plaintiffs had received 309 consents (in accordance with the appropriate form) and no opt out notices. 34However after 20 February 2012 Mr Wyld solicitor for the plaintiffs was contacted by two PINs investors, David and Wendy Finney in relation to concerns they had regarding the proposed settlement. I should note that Mr and Mrs Finney had signed and sent in their consent forms. Mr Wyld met with Mr Finney on 1 March 2012 and discussed matters with him. On 8 March 2012 Mr Wyld wrote to Mr Finney setting out in some little detail matters which had been discussed. As this exhibit has been marked a confidential exhibit I will not set out the detail. 35Mr Finney attended at the hearing of the proceedings before me on 16 April and made a statement concerning various matters which troubled him and his wife. I will deal with these issues later in the judgment.

Principles to be Applied in Approving the Settlement 36Section 173 of the CPA reads, relevantly (1) Representative proceedings 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 are just with respect to the distribution of any money, including interest, paid under a settlement or paid into the Court. 37The process of Court approval of proposed settlements of representative proceedings is well established in the FCA and the Supreme Court of Victoria under Part IVA of the FCA and Part 4A of the Supreme Court Act 1986 (Vic). Section 33V of the FCA expressly requires Court approval of any settlement or discontinuance of representative proceedings or any claim therein: Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250. In Tasfast Air Freight v Mobil Oil Australia Ltd [2002] VSC 457, Bongiorno J said at [4] that: The principles upon which s.33V is based might be said to be those of the protective jurisdiction of the Court, not unlike the principles which lead the Court to require compromises on behalf of infants or persons under a disability to be approved. In a group proceeding, ex hypothesi , there may be persons, in the community who can be affected by such settlement but know nothing of it. 38Whether approval of a settlement is granted pursuant to s 33V of FCA depends on whether the settlement is 'a fair and reasonable compromise of the claims made on behalf of the group members': Lopez v Star World Enterprises Pty Ltd [1999] FCA 104 at [15] per Finkelstein J; see also Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925 at [19] per Goldberg J; Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) [2006] FCA 1388 at [31] per Jessup J; Dorajay Pty Ltd v Aristocrat Leisure Limited [2009] FCA 19 at [10] per Stone J; P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd (No 4) [2010] FCA 1029; Harrison v Sandhurst Trustees Ltd [2011] FCA 541 at [13] per Gordon J; Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2011] FCA 671 at [69] - [77] per Jacobson J and Pharm-A-Care Laboratories Pty Ltd v Commonwealth (No 6) [2011] FCA 277 per Flick J at [20] - [25] (applied in Pharm-A-Care Laboratories Pty Ltd v Commonwealth [2011] NSWC 277 per Price J). 39Part IVA of the FCA was the result of extensive class action reform proposals by the Australian Law Reform Commission, and came into operation in March 1992. Although the FCA does not provide guidance as to the application of s 33V, the section has received extensive judicial attention since its inception. 40The approach adopted by judges in the Federal Court to identical provisions as are contained in the CPA ought to guide how this Court should approach its task. As the High Court said in Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89 at 151 - 152, [135]: Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law. 41The following authorities usefully indicate the criteria that may be considered by trial Courts when considering a s 33V application. 42In Williams v FAI, Goldberg J noted at [19]: Ordinarily the task of a court upon an application such as this, is to determine whether the proposed settlement or compromise is fair and reasonable, having regard to the claims made on behalf of the group members who will be bound by the settlement. Ordinarily in such circumstances the Court will take into account the amount offered to each group member, the prospects of success in the proceeding, the likelihood of the group members obtaining judgment for an amount significantly in excess of the settlement offer, the terms of any advice received from counsel and from any independent expert in relation to the issues which arise in the proceeding, the likely duration and cost of the proceeding if continued to judgment, and the attitude of the group members to the settlement. 43In Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250, Branson J noted at 258: 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. 44In Lopez v Star World Enterprises Finkelstein J noted at [15]: ... the task of the court in considering an application under s33V is indeed an onerous one especially where the application is not opposed. It is a task in which the court inevitably must rely heavily on the solicitor retained by, and counsel who appears for, the applicant to put before it all matters relevant to the court's consideration of the matter. In this regard there would be few cases where the court can properly exercise its power under s33V without evidence from the solicitor supported by counsel that the proposed compromise is in the interests of the group members. I appreciate that, on occasion, this will place the solicitor and counsel in a difficult position. The interests of their client will not always be coincident with the interests of the members of the group. But, in my view, that is no more than a necessary consequence of their client instituting a representative action. 45In Darwalla Milling Co Pty Ltd (No 2) Jessup J noted at [50]: ... the court's function is, relevantly, confined to the question whether the settlement was fair and reasonable. There will rarely, if ever, be a case in which there is a unique outcome which should be regarded as the only fair and reasonable one. In settlement negotiations, some parties, and some advisers, tend to be more risk-averse than others. There is nothing unreasonable involved in either such position and, under s 33V, the court should, up to a point at least, take the applicants and their advisers as it finds them. Neither should the court consider that it knows more about the group members' businesses than the applicants, or more about the actual risks of the litigation than their advisers. So long as the agreed settlement falls within the range of fair and reasonable outcomes, taking everything into account, it should be regarded as qualifying for approval under s 33V. 46In P Dawson Nominees Pty Ltd Finkelstein J noted at [4]: Despite the obvious advantages of settling class actions, there remains the need to ensure that the interests of class members are adequately looked after. In the trial preparation, and the conduct of the trial itself, their protection depends, in no small measure, on the capacity of the named applicant to monitor the actions of the lawyers who have been retained to run the case. When it comes to a settlement it is the court that assumes responsibility for protecting the interests of the class members. In that task the court necessarily places considerable reliance on the parties' lawyers. I say "parties' lawyers" to make clear that I do not think that it is just the applicant's lawyers that carry the burden of ensuring that the court is given sufficient information to assess whether a proposed settlement is to be approved. 47The Court should consider each of the factors identified by Goldberg J in Williams v FAI (No 4) at [19].

The Reasonableness of the Settlement Proposal 48The amount of the settlement is $19.5 million less the following: (a) an amount of $3,470,607.83 for the plaintiffs costs incurred in the proceeding including all costs associated with this application; and (b) an amount of $100,000 to be provisioned by the Trustee for legal costs that may be incurred in administering the settlement. 49These proceedings on any view had the capacity to raise both factual and legal issues of some complexity. Predicting with any degree of certainty what may or may not happen at the end of such litigation is near to impossible. It must be recalled that there is no case that cannot be lost and, like it or not, litigation in many respects can be a blunt instrument in terms of satisfactorily resolving the grievances of the parties. 50I have had the advantage of reading the opinion provided by Senior Counsel for the plaintiffs which naturally directs its attention to both questions of liability and quantum. If I may say so it objectively and thoroughly canvasses the relevant issues and provides more than an adequate basis in my mind for approving the proposed settlement. 51Without intending to disclose any detail at all contained in the opinion it highlights only too realistically the likely factual and legal quagmire that would inevitably have lay ahead. 52It must also be recalled that these proceedings were commenced some little time ago, in 2008. It was put to me in submissions that although it is difficult to determine how long a matter may take to come on for hearing, that it was unlikely that a trial of the separate question would have occurred within 2 or 2.5 years from today's date. There is no reason to disagree with that assessment. 53Although at all relevant times, and not it seems without some difficulty and with the assistance of the mediator the Honourable R V Gyles QC the matter was finally resolved. 54Last but not least the profile of the Investors is highly relevant. Virtually all such persons are over 60 years of age, retired and who rely on the superannuation and other investments for a pension or superannuation payment for living costs during their retirement. This feature is of some importance when one looks at the nature of the compromise reached. There is no doubt in my mind that as early a resolution as is possible is what is in the best interests of members of the group. 55I should also say that the matter has reached a stage where a very clear picture had emerged as to the various issues facing the parties so a considered assessment of prospects could be made.

Mr Finney's Submissions 56Mr Finney sought and obtained the leave of the Court to make submissions on 16 April. He and his wife had signed all relevant documentation consenting to the settlement going ahead. It was plain to me that he did not seek to interfere with members of the group obtaining a distribution of the settlement proceeds (including himself and his wife). He raised a number of matters which in part turned upon what he described as a lack of transparency in the process. The transcript will record what he said, which in my view is more than adequately answered by Mr Lockhart SC. 57He was present in Court when Mr Lockhart made it abundantly plain for example who was released and who was not released from liability. As I indicated on 16 April I regard the settlement as in the interests of each member of the group including Mr and Mrs Finney. Delay by protracting the litigation where there are complex legal and contractual issues to be confronted is not in anybody's interests. Compromise in litigation of any sort does not necessarily lead to elation but one thing is very clear: It does lead to certainty. In my opinion this group requires certainty given their particular profile. 58I certainly did not regard anything put to me by Mr Finney as in any event suggesting I should hold up the process.

Legal Costs 59Of the lump sum $19.5 million the plaintiffs seek a fixed amount of $3,470,607.83. This includes an amount of $264,000 (inclusive of GST) which may or may not need to be expended. 60I accept the evidence of Mr Wyld where he expressed the view that the future additional legal costs to be incurred by the plaintiffs if the matter were to proceed to trial could easily amount to $5 - $6 million. I also accept by reason of the information he has obtained from the defendant that possibly $6 to $8 million additional could easily have been incurred by the defendants. Whilst he accepts the difficulty in estimating such matters the suggestion that the overall legal costs for all parties if the matter were to proceed to trial could be in excess of $15 million. Sadly I do not regard this as an overestimate. 61The plaintiffs relied upon an affidavit of a Mr Mazzeo. He had previously provided expert opinion in connection with approval of settlements by Courts in representatives and class action proceedings. He said that he has given opinions in approximately 20 significant representative and/or class action proceedings in the last 9 years. He identifies some of them. They clearly are each and every one significant milestones in this type of litigation. His grand total for estimated costs was $3,492,213.76 to date. That entirely accords with materials put before the Court by Ms Griffin, the Head of the Dispute Resolution, ANZ Wealth, employed by ANZ and who has been involved in the managing of the proceedings on behalf of the Trustee since May 2008. 62I have no hesitation in accepting the amount identified as referrable to legal costs including the likely future estimated costs involved in and/or associated with the approval process.

Conclusion 63In my opinion the settlement reached was indeed fair and reasonable. If I may say so the principal beneficiaries are indeed in my opinion the members of the group concerned. Whilst the amount each will receive will involve accepting an amount less than that which they invested it is nonetheless reasonable in all the circumstances.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 May 2012