Bradgate (Trustee) v Ashley Services Group Limited

APPLICABLE PRINCIPLES 9 The principles applicable to court approval of settlements of representative proceedings are well-established. The fundamental task of the Court is to determine whether the settlement is fair and reasonable having regard to the interests of the group members who will be bound by it. Justice Lee recently summarised the applicable principles in McKenzie v Cash Converters International Ltd (No 3) [2019] FCA 10 at [24] as follows: First, the Court assumes an onerous and protective role in relation to group members' interests, in some ways similar to Court approval of settlements on behalf of persons with a legal disability; secondly, the Court must be astute to recognise that the interests of the parties before it and those of the group as a whole (or as between some members of the group and other members) may not wholly coincide; thirdly, and connected to the second point, the Court should be alive to the possibility that a settlement may reflect conflicts of interest or conflicts of duty and interest between participants in the common enterprise which has conducted the representative proceeding; fourthly, the Court should understand that at that point of settlement approval, the interests of the parties have merged in the settlement and both sides may not critique the settlement from the perspectives of the group members who may suffer a detriment or obtain lesser benefits through the settlement; fifthly, the Court must decide whether the proposed settlement is within the range of reasonable outcomes, not whether it is the best outcome which might have been won by better bargaining (in this way, the Court's task is not to second-guess the applicant's lawyers, and it should recognise that different applicants and different lawyers will have different appetites for risk). (Citations omitted) 10 Further, when the Court performs its supervisory and protective role, and in particular when assessing whether the proposed settlement falls within the range of reasonable outcomes, the Court relies heavily on the applicant's counsel who, as guided by [14.4] of the Class Actions Practice Note (GPN-CA), should address the following factors: (1) the complexity and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings; (4) the risks of establishing liability; (5) the risks of establishing loss or damage; (6) the risks of maintaining a class action; (7) the ability of the respondent to withstand a greater judgment; (8) the range of reasonableness of the settlement in light of the best recovery; (9) the range of reasonableness of the settlement in light of all the attendant risks of litigation; and (10) the terms of any advice received from counsel and/or from any independent expert in relation to the issues which arise in the proceeding.

CONSIDERATION 11 In light of the applicable principles referred to above, I am satisfied that the proposed settlement in this proceeding is fair and reasonable having regard to the interests of group members. In short summary: (1) the settlement sum falls within the range of fair and reasonable outcomes, particularly having regard to the litigation risks identified in the joint opinion; (2) the method by which the amounts payable to group members are to be calculated and assessed under the Settlement Distribution Scheme is fair and reasonable; and (3) the funder fee, legal costs and disbursements are each reasonable, both in the context of the settlement sum and objectively (again having regard to the nature of the litigation as a whole as expressed in the joint opinion). 12 I will briefly address each of these points.

Settlement sum 13 The settlement sum of $14.6 million is not insubstantial in the context of the claims brought on behalf of the applicant and group members. On the one hand, each of the prospectus claim, the misleading or deceptive claims, and the continuous disclosure contraventions were all arguable. On the other hand, there were substantial risks inherent in the case pleaded which, as discussed in the confidential opinion of the applicant's counsel, justified the settlement sum.

Funding equalisation mechanism 14 Turning to the method by which amounts payable to group members are to be calculated and assessed, the Settlement Distribution Scheme, which governs this process, proposes to use a funding equalisation mechanism to ensure that an amount equivalent to the funding commission (discussed further below) is distributed on a pro rata basis to all registered group members. 15 Funding equalisation mechanisms are regularly approved by courts: see, eg, Dorajay Pty Ltd v Aristocrat Leisure Limited [2009] FCA 19 at [14] and [17]; P Dawson Nominees Pty Ltd v Brookfield Multiplex Limited (No 4) [2010] FCA 1029 ('Dawson Nominees') at [28]; Modtech Engineering Pty Limited v GPT Management Holdings Limited [2013] FCA 626 ('Modtech') at [58]; Earglow Pty Ltd v Newcrest Mining Limited [2016] FCA 1433 ('Earglow') at [83]; HFPS Pty Limited (Trustee) v Tamaya Resources Limited (in liq) (No 3) [2017] FCA 650; Liverpool City Council v McGraw-Hill Financial, Inc (now known as S&P Global Inc) [2018] FCA 1289. They achieve equality of treatment between group members because unfunded group members (that is, group members who have not entered into a funding agreement with a litigation funder) would not receive any more 'in hand' than funded group members: Dawson Nominees at [28]. As has been espoused by the courts, there is no good reason why unfunded group members should be permitted to take the benefit of the proposed settlement without paying a proportionate share of the funding costs: Earglow at [83].

Funder's fee, and legal costs and disbursements 16 I turn now to the reasonableness of the various costs to be borne by the applicant and the group members. In considering reasonableness, I also take into account whether the various costs are proportionate to the recoveries of the class members: see Petersen Superannuation Fund Pty Ltd v Bank of Queensland Ltd (No 3) [2018] FCA 1842 ('Petersen'). 17 Regarding the funder's fee (or funding commission), I am satisfied that in the context of s 33V settlement approval applications, the fee to be paid to the litigation funder in this proceeding is fair and reasonable. 18 The factors that a court may take into account when assessing the reasonableness of the fee to be paid to a litigation funder are well-settled and do not need to be repeated here. In the present circumstances, it suffices to refer to the Full Court's comments in Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd [2016] FCAFC 148; (2016) 245 FCR 191 at 209 [80]. 19 With those well-established factors in mind, and having regard to the spreadsheet attached as Annexure A to these reasons (which was included in an exhibit to Mr Petrovski's confidential affidavit but which was agreed could be referred to in my reasons), I note the following: (1) The average funding rate between funded group members and the funder was 40.77%. Relevantly, the funded group members include sophisticated institutional investors which, according to the confidential evidence of Mr Petrovski, represented the majority of the claim by value, and there is no reason to doubt that the rate agreed between the parties was the product of negotiation between well represented parties in equal bargaining positions. (2) The funding fee rate of 33.18% (which is the average funding rate referred to at (1) above with the funding equalisation mechanism also referred to above, applied) is within the range of the usual funding fee rates that were available at the relevant time in the Australian market: see Earglow at [166]-[177] and Blairgowrie Trading Ltd v Allco Finance Group Ltd (in liq) (No 3) [2017] FCA 330; (2017) 343 ALR 476 at 509-514 [124]-[142]. Further, as stated by the Australian Law Reform Commission in its 28 May 2018 discussion paper entitled "Inquiry into Class Action Proceedings an Third Party Litigation Funders" at [5.34] when referring to fee rates charged by litigation funders operating in Australia, "commission rates are usually charged at about 30% of the settlement sum". Collectively, these authorities demonstrate that the rate of 33.18% is broadly within the range of funding fee rates (although admittedly marginally higher) which have been held to be reasonable. (3) The availability of funding (on the terms of the relevant funding agreement between the funder and funded group members) was, practically speaking, a precondition to the group members receiving any benefit under the proposed settlement. The evidence suggests that the applicant would not have brought the proceeding in the absence of litigation funding. (4) The case was complex and at the time of its commencement the applicant faced the significant risks identified in the confidential opinion of its counsel. The significant risks in the present case, which I will not repeat here, are important factors in rendering the funder fee reasonable. (5) The funder assumed at the commencement of the proceeding the risks of significant adverse costs orders and of providing security for the applicant's costs. (6) The funder fee to be received by the funder is proportionate to the amount sought and recovered in the proceeding and the settlement, and the costs and risks assumed by it. 20 Regarding the legal costs and disbursements of $3,569,755 that are sought to be approved, I am satisfied that these are reasonable and proportionate. 21 Again, the principles governing the Court's determination of whether to approve the deduction of legal costs and disbursements from the settlement sum are well understood. At a high level, the Court must be satisfied that the costs and disbursements claimed are "reasonable in the circumstances": see Modtech at [32] and [37] in which Gordon J set out a non-exhaustive list of factors to be considered. 22 Courts will, from time to time, rely on expert evidence from an independent costs consultant engaged by the applicant's solicitors: see, eg, King v AG Australia Holdings Ltd (formerly GIO Australia Holdings Ltd) [2003] FCA 980 at [15]; Matthews v AusNet Electricity Services Pty Ltd [2014] VSC 663 at [356]-[386]. In this case, Mr Joseph Mazzeo, a costs consultant who has provided expert costs opinions in over thirty class actions, was engaged by the applicant to provide such expert evidence. He concluded that: (1) the rates charged by William Roberts are 'at the lower end of the range' for comparable work by similar firms; (2) all fees and disbursements were reasonable; and (3) the (estimated) approval and administration costs are reasonable: 23 I accept this opinion and find the legal costs and disbursements claimed to be reasonable. In this case, the Court is able to reach this view without further assistance: see, eg, Petersen at [124]-[125].

Other considerations 24 Finally, I briefly mention two further points. 25 First, the additional compensation to be paid to the applicant for the time spent representing the interests of group members. As Lee J stated in Dillon v RBS Group (Australia) Pty Limited (No 2) [2018] FCA 395 at [72], this is a: standard payment that has been made in a very large number of cases, to compensate an applicant for the time the applicant has spent representing interests other than his or her own. It is appropriate for such an additional payment to the made to the named applicant, and the amount (and basis for the calculation) contained in Mr Petrovski's confidential affidavit is reasonable. 26 Second, the amount of the administration costs of $151,250 is reasonable and is significantly lower than the administration costs approved in analogous applications by this Court: see Caason Investments v Cao (No 2) [2018] FCA 527 at [154].

CONCLUSION 27 For the reasons set out above, I am satisfied that the Court ought to order, pursuant to s 33V of the FCA Act, that the proposed settlement be approved on the terms set out in the Settlement Deed and the Settlement Distribution Scheme, and I will so order. 28 I will also make the other orders sought in the interlocutory application for the settlement approval. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

SCHEDULE OF PARTIES NSD 2074 of 2016 First Cross-Claim Cross-Claimant: Ashley Services Group Limited (ACN 094 747 510) First Cross-Respondent: Holmes Management Group Pty Ltd (ACN 164 551 526) Second Cross-Respondent: Carl Holmes Third Cross-Respondent: Marie Holmes

Second Cross-Claim Cross-Claimant: Ashley Services Group Limited (ACN 094 747 510) First Cross-Respondent: Deloitte Touche Tohmatsu Second Cross-Respondent: Deloitte Corporate Finance Pty Ltd (ACN 003 833 127)

Third Cross-Claim Cross-Claimant: Ashley Services Group Limited (ACN 094 747 510) Cross-Respondent: Grant Thornton Corporate Finance Pty Ltd (ACN 003 265 987)

Fourth Cross-Claim Cross-Claimant: Grant Thornton Corporate Finance Pty Ltd (ACN 003 265 987) Cross-Respondent: Ashley Services Group Limited (ACN 094 747 510)