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[2015] FCA 688
Federal Court of Australia
2015-07-07
Collier J
Original judgment source is linked above.
Number of paragraphs: 80
Counsel for the First, Second, Third and Fourth Applicants: Mr DJ Campbell QC
Solicitor for the First, Second, Third and Fourth Applicants: Levitt Robinson
Counsel for the First and Second Respondents: Mr RS Hollo SC with Mr IJM Ahmed
Solicitor for the First and Second Respondents: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION NSD 811 of 2010
AND: COMMONWEALTH BANK OF AUSTRALIA (ABN 48 123 123 124)
COLONIAL FIRST STATE INVESTMENTS LTD (ABN 98 002 348 352)
JUDGE: COLLIER J DATE OF ORDER: 7 JULY 2015 WHERE MADE: BRISBANE
THE COURT ORDERS THAT:
AND: COMMONWEALTH BANK OF AUSTRALIA (ABN 48 123 123 124)
COLONIAL FIRST STATE INVESTMENTS LTD (ABN 98 002 348 352)
JUDGE: COLLIER J DATE: 7 JULY 2015 PLACE: BRISBANE
REASONS FOR JUDGMENT 1 This matter involves a representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth) (the Act). The applicants commenced this proceeding on behalf of themselves and others who were at material times clients of Storm Financial Ltd (Storm). Relevantly, the applicants and other members of that group had borrowed money from the first respondent (CBA) to invest in products recommended by Storm. The second respondent, Colonial First State Investments Ltd (CFS) - a wholly owned subsidiary of CBA - carried on a financial services business and offered investment funds for investment solely and exclusively by Storm clients. 2 The events surrounding the collapse of Storm and the loss of investors' funds have been the subject of extensive litigation in this Court and summarised elsewhere (see for example Australian Securities and Investments Commission v Cassimatis (2013) 302 ALR 671; Lee v Bank of Queensland Ltd (2014) 103 ACSR 436). 3 Notwithstanding a lengthy trial in this Court, at the end of which the trial Judge reserved his decision, the parties in this proceeding have reached a settlement prior to publication of the trial Judge's judgment. This settlement is not effective unless it is approved by the Court: s 33V(1) of the Act. 4 Incidental to the settlement arrangements, there are two interlocutory applications before the Court. 5 On 3 March 2015 I made orders relating to the Notice of Proposed Settlement and arrangements relating to that Notice pursuant to an interlocutory application filed by the applicants. On 5 March 2015 the applicant, with leave, filed an amended interlocutory application in substantially similar terms to that already partly considered by me. This amended interlocutory application is currently before the Court, but only in relation to paragraphs 21-30. Those paragraphs read as follows: Approval of change in group membership and settlement 21. Pursuant to s 33K or 33ZF of the FCA Act, the Applicants have leave to file a ninth further amended statement of claim which amends paragraph 2 of the eighth further amended statement of claim so as to exclude from the definition of Group Members any person identified as an Excluded Person or Nil Offeree within the meaning of the Settlement Deed. 22. In the alternative to order 21, such other orders as the Court deems fit that make it clear that neither Excluded Persons nor Nil Offerees are bound by any judgment in, nor entitled to participate in, the Proposed Settlement. 23. Pursuant to sections 33V and 33ZF of the FC Act the settlement of this proceeding be approved on the terms set out in the Settlement Deed. 24. Pursuant to s33V(2) or s 33ZF of the FC Act: (a) the Applicants' costs of the proceedings be approved; and (b) the Applicants' costs of obtaining approval of the settlement of this proceeding be approved. 25. Pursuant to s33ZF of the FC Act or otherwise, the Applicants be authorised nunc pro tunc on behalf of group members identified as Settling Group Members and Registered Settling Group Members within the meaning of the Settlement Deed, to enter into and to give effect to the Settlement Deed and the transactions contemplated thereby for and on behalf of those Group Members. 26. Pursuant to section 33ZF of the FC Act any group member (other than a group member identified as a Settling Group Member, Excluded Person or Nil Offeree within the meaning of the Settlement Deed) who has failed to register to participate in the Proposed Settlement in accordance with any order made in accordance with order 6 above, will remain a Group Member for all purposes and will be bound by its terms (including in respect of the release of any claims he, she or it may have against CBA) but will not be entitled to receive any compensation pursuant to the settlement of this proceeding. 27. The whole of the proceeding be dismissed with no order as to costs. 28. Any orders relating to costs previously made in the proceedings be vacated. 29. The Cross-Claim filed on 19 July 2012 be dismissed against the First and Second Applicants with no order as to costs. 30. Such further or other order as the Court deems fit. 6 I note that the applicants have subsequently sought a variation to the wording of paragraph 26 in respect of "any order made in accordance with order 6 above", so that any order made by the Court in terms of paragraph 26 would be by reference to an order made "in accordance with order 6 of the Orders dated 3 March 2015". 7 The second interlocutory application for consideration by the Court was filed by the respondents on 15 May 2015. In that application the respondents sought the following orders: 1. Pursuant to s 33ZF of the Federal Court of Australia Act 1976 (Cth) (FC Act), the First Respondent is not required to provide compensation to a Settling Group Member or a Registered Settling Group Member, unless each person listed under the relevant ASIC Client Code in the Settlement Spreadsheet or Registered Settling Group Member has provided a release in a form required by the First Respondent. 2. Pursuant to section 33ZF of the FC Act, all things required to give effect to the Approved Settlement must be completed within 6 months of the date on which the Court approves the Approved Settlement pursuant to s 33V of the FC Act. 3. Pursuant to section 33ZF of the FC Act, if a Settling Group Member or a Registered Settling Group Member has not taken all steps necessary to enable the First Respondent to provide compensation to a Settling Group Member or a Registered Settling Group Member in accordance with the Approved Settlement and order 1 above, by a date which is 4 months after the date on which the Court approves the Approved Settlement, then the Settling Group Member or Registered Settling Group Member will not be entitled to receive any compensation pursuant to the settlement of this proceeding. 4. Such further or other order as the Court deems fit. 5. Each party pay their own costs. Approved Settlement means the proposed settlement of the proceeding agreed between the Applicants and the Respondents and as approved by this honourable Court. Settlement Spreadsheet means Annexure 1 to the Deed of Settlement executed by the parties to this proceeding in February 2015. Settling Group Member has the meaning given to that term in the Deed of Settlement executed by the parties to this proceeding in February 2015, and includes any Associated Entity. Registered Settling Group Member has the meaning given to that term in the Deed of Settlement executed by the parties to this proceeding in February 2015. 8 At the hearing on 20 May 2015, Mr Hollo for the respondents informed the Court that the respondents sought a variation of the dates in draft orders 2 and 3, to be referable to the approval date of the Deed of Settlement. 9 The orders sought in both interlocutory applications are not opposed by the respondents to either application. I will consider each interlocutory application in turn.
AMENDED INTERLOCUTORY APPLICATION FILED 5 MARCH 2015 10 The relief sought by the applicants in the amended interlocutory application filed on 5 March 2015 can be summarised as: (1) Leave to file a ninth further amended statement of claim. (2) An order dismissing the cross-claim filed on 19 July 2012 against the third and fourth applicants (Mr and Mrs McArdle). (3) An order approving the proposed settlement pursuant to s 33V and s 33ZF of the Act. (4) Approval of the costs of the proceeding.
Application to file ninth further amended statement of claim 11 The eighth further amended statement of claim is the pleading which was before the trial Judge. The amendments sought by the applicants is to exclude from the definition of "group members" any person identified as an Excluded Person or Nil Offeree within the meaning of the proposed Deed of Settlement and Release (the Deed). In particular, paragraph A(2) of the Statement of Claim is sought to be amended in the following fashion: A Introduction (i) The Applicants 1. The Applicants commence these proceedings as representative parties pursuant to Part IVA of the Federal Court of Australia Act, 1976 (Cth) (the "FCA"). 2. The Applicants and the persons they represent in these proceedings pursuant to Part IVA of the FCA: (a) were clients of Storm Financial Limited ("Storm"): (b) who: (1) borrowed money from the First Respondent ("CBA") pursuant to CGI Margin Loans (as defined in paragraph 3(e) below) entered into on or after 18 May, 2007, or who increased their borrowings from CBA on or after 18 May, 2007, pursuant to CGI Margin Loans entered into before 18 May, 2007; and (2) invested the money borrowed in any one or more of the Investment Funds (as defined in paragraph 6 below); (c) had their investments caused to be redeemed or sold by CBA between in or about October, 2008 and in or about December, 2008; (d) have not duly agreed with CBA to settle the claims the subject of these proceedings; (e) are not listed in Annexure "C" hereto; and (f) are not listed in Annexure "D" hereto. (The persons whom the Applicants represent in these proceedings will be referred to independently of the Applicants as the "Group Members".) [The words underlined represent additions to the previous version of this paragraph.] 12 Annexures C and D contain lists of names of individuals and, in one case, a company. 13 An explanation for this proposed amendment can be found in the affidavit of Ms Stephanie Carmichael sworn 27 February 2015. Ms Carmichael is one of the solicitors of the applicants on the record in this matter with carriage of the proceeding. Materially in her affidavit Ms Carmichael deposes: 19. The group members in the Proceedings (as currently defined in paragraph 2 of the Eighth Further Amended Statement of Claim (8FACOC)) relevantly include all people who were clients of Storm who borrowed money from CBA pursuant to a margin loan within a defined period (or increased their borrowings from CBA in that period) in order to invest in certain investments recommended by Storm and whose investments were redeemed in the period between October and December 2008 who have not already settled their claims with CBA. 20. I have been informed by the solicitors for CBA and believe that there are approximately 178 client codes (where one client code may include joint borrowers such as husbands and wives or non-borrowing associated parties of borrowers) who fall within the current group member definition. The Applicants have filed an application seeking to amend the group member definition in paragraph 2 of the 8FASC [sic] to exclude from the Proposed Settlement, the group members named in Annexures 4 and 5 of the Deed of Settlement (being Excluded Persons and Nil Offerees within the meaning of the terms of the Deed of Settlement). 21. At a general level, the Excluded Persons are persons who were involved in the operation of Storm, such as advisers of Storm, and their spouses. The Nil Offerees are those persons who are assessed under the ASIC Compensation Model as not having suffered any loss, or any additional loss. Section 33ZE of the FC Act will apply in accordance with its terms for the purposes of any future claim that a Nil Offeree or Excluded Person within the meaning of the Settlement deed may make against the Respondents. 14 This evidence is consistent with the definition of "Settling Group Members" in clause 6.1 of the Deed, the definition of "Excluded Persons" in clause 6.2 of the Deed, and the definition of "Nil Offerees" in clause 6.3 of the Deed. 15 It is not in dispute that persons falling into the categories of Excluded Persons and Nil Offerees were given notice of the application to amend the eighth further amended statement of claim. I further note that Schedule 1 to the orders made by me on 3 March 2015 was a Notice of Proposed Settlement, to be published by the applicants as well as forwarded by their solicitors to each of the Group Members who had retained the solicitors to act on their behalf in the proceeding. Clause 33 of the Notice of Proposed Settlement specifically stated: As noted above, it is a condition of the Proposed Settlement that the Federal Court makes orders amending the definition of Group Member in the Sherwood Proceeding. That amendment will have the effect of excluding certain people from that definition. In general terms, the people excluded in this way will be: (a) persons who had a role in the operation of Storm, or invested jointly such a person; or (b) persons who are assessed under the ASIC compensation model as receiving no or [sic] compensation. 16 Clause 34 of the Notice of Proposed Settlement further provided: Any person who is excluded from the definition of Group Member in this way will not receive any compensation under the Proposed Settlement, but will retain their existing rights against CBA. However, if such persons contributed to funding the Sherwood Proceeding, they will be reimbursed for that contribution as described in paragraph 24 above. 17 The applicants contend, in summary, that: The proposal to narrow the definition of "group member" is to facilitate settlement. If an Excluded Person were to remain as a group member he or she would have the benefit of the settlement although they were closely connected or otherwise associated with Storm. Application of the model developed in consultation with the Australian Securities and Investments Commission (the ASIC Compensation Model), to the position of those persons who are "Nil Offerees", results in their loss being assessed as zero. The positions of both Excluded Persons and Nil Offerees for any causes of action against the first respondent were preserved by operation of s 33ZE of the Act. 18 Section 33K(1) of the Act provides: The Court may at any stage of a representative proceeding, on application made by the representative party, give leave to amend the application commencing the representative proceeding so as to alter the description of the group. 19 As Merkel J observed in Bray v F. Hoffman-La Roche Ltd [2003] FCA 1505 at [25]: The heading of s 33K suggests that it is only concerned with an alteration to the description of the group to include persons whose causes of action have accrued after commencement of the proceeding. However, s 13(3) of the Acts Interpretation Act 1901 (Cth) provides that a heading of a section of an Act is not to be taken to be part of the Act. Thus, when the heading of the section is disregarded, it is clear that s 33K(1) empowers the Court to grant leave in respect of any amendment to the description of the group once a proceeding has been commenced. (emphasis added.) 20 In Rod Investments (Vic) Pty Ltd v Clark (No 3) [2007] VSC 306 the plaintiff made application pursuant to s 33K of the Supreme Court Act 1986 (Vic) (the Supreme Court Act) to amend the group description in a representative proceeding to exclude persons with familial and other connections to the defendants. I note that s 33K of the Supreme Court Act is in identical terms to s 33K of the Act. In discussing the matter and the application of the relevant Victorian legislation, at [10] Hansen J observed, in summary that: The range of considerations to which the Court could have regard in respect of s 33K were broad. Section 33K empowered the Court to order that persons be excluded from the representative group. Section 33K empowered the Court to consider what was the just and convenient way of the proceeding advancing through to judgment. 21 I respectfully concur with his Honour's articulation of these principles. 22 In the present case no persons who would be excluded from the settlement on the basis that they fall into the category of either an Excluded Person or a Nil Offeree have filed a notice of objection opposing the application for leave to file a ninth further amended statement of claim by the applicant. Further, and importantly, no such person would be deprived of their existing rights against the respondents notwithstanding the settlement of the proceedings agreed between other group members and the respondents (cf observations of Hansen J in Clark (No 3) at [13]). 23 I am also satisfied that the ASIC Compensation Model is a fair tool to determine the extent of loss suffered by group members. Evidence of the development of the ASIC Compensation Model, its refinement over a five year period, and the manner in which it operates, was given by Mr Terence Potter, a Director of Axiom Forensics Pty Ltd (Axiom). In his affidavit sworn 12 May 2015, Mr Potter gave evidence that Axiom was engaged by ASIC in 2009 to develop a profit and loss model to measure the loss suffered by Storm investors, and that there were 3,739 Storm client accounts for which calculations were undertaken. In particular I note paragraphs 8 and 9 of Mr Potter's affidavit which read as follows: 8. The Model allocates loss or profit between the banks by reference to the bank that funded the investment through Storm. The allocation is performed on a Storm client account and investment by investment basis. The allocation is based upon: a) The actual interest and fees charged by a particular bank to the Storm client account for loans used to purchase investments through Storm; and b) The proportion of the Storm client account's total Storm related borrowings that was contributed by that lender. 9. The Model operates by sequentially extracting data relevant to each Storm client account from a database in SQL Server and inputting the extracted data into the Model (a Microsoft Excel template). A unique copy of the Model is saved for each Storm client account. Output data from each iteration of the Model is uploaded back to the database for consolidation into an aggregated compensation calculation … 24 I further note paragraphs 12 and 13 of Mr Potter's affidavit in which he deposes: 12. The Model calculates a loss allocated to CBA in respect of the 143 client accounts identified as Group Members in the amount of $52,277,795. 13. In Annexure A to the Deed of release and settlement, the "Settlement Spreadsheet", the values in column D "ASIC Compensation Amount" are 55% of the loss allocated to CBA in respect of each client account. The sum of the ASIC Compensation Amounts for all client accounts is $28,752,787. 25 In such circumstances it is reasonable to draw the inference that the Nil Offerees could not have received compensation under the Deed because the ASIC Compensation Model assess that they have not suffered any loss. 26 I am satisfied that it is reasonable to amend the pleadings to exclude Excluded Persons on the basis that such persons were linked to the conduct giving rise to the substantive proceeding. 27 Finally, I note the evidence before the Court that at least 15 Excluded Persons or Nil Offerees have commenced new proceedings against CBA separately in respect of existing rights asserted by those parties (affidavit of Ms Stephanie Carmichael sworn 14 May 2015 at [14]-[16]). 28 In the circumstances I am prepared to grant leave to the applicants to amend the eighth further amended statement of claim, and to file a ninth further amended statement of claim in the terms proposed.
Cross-claim filed on 19 July 2012 against the third and fourth applicants 29 It is common ground that a notice of cross-claim was filed on 19 July 2012 by CBA against Mr Sean McArdle and Mrs Paula McArdle, the third and fourth applicants in the substantive proceedings. In substance, CBA cross-claimed judgment in respect of: an unpaid loan of $1,218,665.57 from CBA to the McArdles (being the amount of the McArdle's home loan debt); interest on $1,218,665.57; the reasonable expenses of CBA of recovering the amount of $1,218,665.57; an additional amount of $76,600.26 (being the McArdle's margin loan debt amount); interest on the amount of $76,600.26; and costs. 30 Mr and Mrs McArdle filed a defence to this cross-claim on 5 March 2013. 31 In relation to this cross-claim, the applicants submit in summary: The cross-claim was not a representative proceeding within the meaning of Pt IVA of the Act, and did not extend to other group members. The trial Judge granted leave to CBA to file a cross-claim on the basis that it did not form part of the first hearing of the representative proceedings. No common question in the representative action flows from the cross-claim as that action relates to the McArdles' home loan only, and judgment on the cross-claim would only have determined a peculiar dispute between those parties on the factual circumstances relevant to the McArdles' home loan. 32 The applicants do not dispute these submissions. 33 I accept these submissions as correct. It is clear that the cross-claim was not part of the substantive proceeding before me, nor a separate representative proceeding. It is appropriate to order that the cross-claim be dismissed, as sought by the parties.
The Proposed Settlement 34 Principles to which this Court can properly have regard in considering whether to approve a settlement of a representative proceeding under Pt IVA of the Act have been the subject of much judicial consideration, as well as being addressed in Practice Note CM 17 Representative proceedings commenced under Part IVA of the Federal Court of Australia Act 1976 (Cth) (issued by this Court on 9 October 2013). A key matter for the Court is whether the Court can be satisfied that settlement has been reached in the interests of the group members as a whole, and not just in the interests of the applicant(s) and the respondent(s): Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258; cf Lopez v Star World Enterprise [1999] FCA 104 at [15] and King v AG Australia Holdings Ltd (2002) 121 FCR 480 at [43]. In this respect, it is of utmost importance that the Court be satisfied that the settlement is fair and reasonable to all group members: Australian Securities and Investments Commission v Richards [2013] FCAFC 89. 35 While there is no "checklist" of factors of which the Court must be satisfied in determining whether a settlement should be approved (Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322 at [33]-[34]) clauses 11.1 and 11.2 of Practice Note CM 17 in particular provide some guidance: 11. Court approval of settlement 11.1 When applying for Court approval of a settlement, the parties will usually need to persuade the Court that: (a) the proposed settlement is fair and reasonable having regard to the claims made on behalf of the group members who will be bound by the settlement; and (b) the proposed settlement has been undertaken in the interests of group members, as well as those of the applicant, and not just in the interests of the applicant and the respondent/s. 11.2 When applying for Court approval of a settlement the parties will usually be required to address at least the following factors: (a) the complexity and likely duration of the litigation; (b) the reaction of the group to the settlement; (c) the stage of the proceedings; (d) the risks of establishing liability; (e) the risks of establishing loss or damage; (f) the risks of maintaining a representative proceeding; (g) the ability of the respondent to withstand a greater judgment; (h) the range of reasonableness of the settlement in light of the best recovery; (i) the range of reasonableness of the settlement in light of all the attendant risks of litigation; and (j) the terms of any advice received from counsel and/or from any independent expert in relation to the issues which arise in the proceeding. 36 Detailed evidence has been filed by the parties in support of the proposed settlement. In particular I note the affidavits of: Ms Stephanie Carmichael filed 27 February 2015, 8 May 2015 and 14 May 2015; Mr Stewart Levitt filed 4 May 2015; Mr Andrew Perkins filed 8 May 2015 and 28 May 2015; Mr Terence Potter filed 13 May 2015; Mr Joseph Mazzeo filed 13 May 2015; Mr Gregory Williams filed two affidavits on 15 May 2015 and two affidavits on 20 May 2015. 37 The Deed was executed by the applicants and the respondents in February 2015. While the Deed remains confidential it is appropriate to note that its principal terms include the following: The Deed was entered by the parties to resolve all proceedings between them, without admission of liability, and to avoid the cost and inconvenience of the litigation between them. In particular, the applicants and each Settling Group Member will provide a release to CBA in respect of any claim concerning the circumstances of the proceeding. The proposed gross settlement sum is $33,680,000. Settling Group Members are defined as Group Members who are not Excluded Persons or Nil Offerees, and are listed in an annexure to the Deed. Excluded Persons and Nil Offerees retain all existing rights against the respondents, and will be entitled to reimbursement for any contribution to costs of the proceedings they have made. The CBA will pay compensation to Settling Group Members, such compensation to be calculated in accordance with the ASIC Compensation Model. The applicants' legal costs incurred in respect of the representative proceedings are to be reimbursed from the aggregate compensation amount. The respondents pay their own costs. The parties bear their own costs of and in relation to the Deed. Settling Group Members are entitled to receive, by way of compensation, 55% of the loss of the group member calculated under the ASIC Compensation Model and attributed to CBA, less a pro rata amount in respect of the applicants' costs of the proceeding. Interest is taken into consideration in determining the amount payable to a Settling Group Member. The compensation to which each Settling Group Member is entitled will first be applied to reduce the debit balance (after the release of any security) of the Settling Group Member's margin loan with CBA. If the Settling Group Member's compensation is insufficient to meet that debit balance, CBA will write off any remaining debit balance (subject to realisation of security for the loan). Any remaining compensation is then applied to reduce certain other debt owed by the Settling Group Member to CBA. If the amount of compensation to which a Settling Group Member is entitled exceeds the debit balance of their margin loan and certain other indebtedness they have to CBA, the remaining compensation will be paid in cash to the Settling Group Member. Compensation payable to Mr and Mrs McArdle would first be applied to their margin and home loan. If any remaining indebtedness in respect of the McArdles' home loan existed after the application of the compensation amount, CBA would write it off. Separate proceedings brought by Dr Anthony Oliver and Dr Mark Irving against CBA would sought to be dismissed by the Court with any existing costs orders vacated. The Deed would be terminated in circumstances including the objection of ASIC, the objection by an Excluded Person or Nil Offeree to the proposed settlement, or the refusal of the Court to make orders in respect of settlement sought by the parties. A person who is a Group Member, but not a Settling Group Member, an Excluded Person or a Nil Offeree, may register to participate in the settlement. The term "Group Member" is defined in clause 2 of the - now - ninth further amended statement of claim, in the terms set out earlier in this judgment. The settlement sum attributable to a Registered Settling Group Member is calculated in accordance with a formula in the Deed, at what appears to be a discounted rate. Those Group Members who fail to register in accordance with the Deed will not be entitled to receive any compensation pursuant to the terms of the Deed or the settlement. 38 In his first affidavit filed 20 May 2015, Mr Gregory Williams, solicitor for the respondents, deposed that Mr Shamus Toomey, a solicitor under his supervision at Clayton Utz had, on 15 May 2015, enquired of Ms Stowell of ASIC as to whether ASIC had any objection to the terms of the settlement as contained in the Deed, and that Ms Stowell had asked for an explanation of the difference in the payment to the Registered Settling Group Members compared with the payment to Settling Group Members. Mr Williams deposed that on 19 May 2015, the day before the hearing, Mr Williams received an email from Ms Stowell in which she said that: With the exception of the relevant clause in the Deed, ASIC did not object to the settlement of the proceeding on the terms set out in the Deed. ASIC understood that the purpose of the discount rate was to achieve some parity between Registered Settling Group Members and Settling Group Members, as Settling Group Members will have Group Members contributions and the additional costs of the applicants' solicitors deducted from their compensation amounts. ASIC's concern however was that the effect of the provision was that CBA would have to pay less compensation overall to Group Members than would otherwise be the case. Subject to the amount of the sum that CBA would be retaining after the application of the discount rate, and the costs of distributing that money, ASIC considered that the amount could be distributed among the class or on a pro rata basis to a charity which assisted people in financial distress. 39 No formal appearance was made by or submissions tendered on behalf of ASIC at the hearing of this matter on 20 May 2015. 40 In my view the terms of settlement are fair and reasonable, for the following reasons. 41 First, earlier in this judgment I made remarks in respect of leave granted to the applicants to file a ninth further amended statement of claim, the position of Excluded Persons and Nil Offerees, and the rationale on which those persons are excluded from the terms of the settlement reached between the applicants and the respondents. In summary - those persons retain existing rights against the respondents and were either: persons whose conduct or relationship to Storm was such that there remain other issues in dispute between them and the respondents (Excluded Persons); or persons who suffered no loss (Nil Offerees). 42 Second, I am satisfied that the ASIC Compensation Model provides a fair method of calculating loss suffered by investors and a fair allocation of the attribution of that loss. As a general proposition I note that I have previously recognised the ASIC Compensation Model as being a fair and reasonable tool: Lee v Bank of Queensland Limited at [39]. Specifically in the context of this case, I note the detailed and uncontested evidence of Mr Terence Potter in his affidavit sworn 12 May 2015 concerning the development of the Model and its application. 43 Third, I note the complexity and duration of this litigation, involving multiple causes of action and significant factual disputes. I note that the initial hearing of the proceeding has concluded, however I also note that that hearing dealt only with the determination of the applicants' claims and the common questions. It is not in dispute that, even had the trial Judge delivered a decision in respect of the matters before him, it would then be necessary for individual proceedings to be constituted pursuant to ss 33Q, 33R and 33S of the Act in order to resolve the claims of Group Members. I am satisfied that those individual proceedings would be costly, complex and lengthy. 44 Fourth, I note that the settlement sum approves a 55% return on the loss suffered by investors attributable to the Bank. I also note the confidential opinions of Counsel which were provided to me in respect of the litigation, and the fact that the parties on both sides were represented by experienced lawyers. In this context I note the observations of Hayne J in Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603: 146. Was there, then, enough material to show that the settlement was reasonable? The trial judge and the Full Court held that the evidence that was led, exiguous as it was, was sufficient to show that it was reasonable and I am not persuaded that that conclusion was wrong. The settlement discounted the insured's claim by between 40 and 50 per cent. Presumably, then, the insured is to be taken to have estimated the chances of the insurer succeeding in its defence as being about that level. It is as well to remember, however, that there are uncertainties inherent in litigation and that predictions of the chances of success in litigation can never be precise. It follows that the comparison between the amount of the settlement and the amount of the claim can never be anything more than a general indication of what the parties see as the risks of continuing the litigation. There was evidence available to the insured, at the time it compromised with the insurer, that the insurer had refused to deal with it in the previous year and the insurer alleged that if it had known all the facts it would not have dealt with the insured in the year in question. No doubt it was on this basis that senior counsel retained to advise the insured about the possible compromise told the insured that it should settle "because the way things were [the insured] would lose" and that it was better to accept the sum of $900,000 rather than "losing everything because there was no disclosure" of the claims history. (emphasis added.) 45 As correctly submitted by Mr Hollo for CBA, the settlement was reached at a point where both applicants and respondents had had the full benefit of having their claims presented and tested, and it could be expected that both parties had a full appreciation of the risks inherent in their positions. 46 Fifth, there is no evidence that any Group Member has objected to the settlement, despite Group Members being provided with notice of their right to oppose the proposed settlement following orders of the Court made on 3 March 2015. 47 Sixth, I note the agreement reached between the applicants and the respondents requiring Group Members to register to participate in the proposed settlement, and accordingly to, in effect, "close the class" of Group Members. The parties seek a specific order from the Court to give effect to this agreement. In particular, the respondents submit that such orders can be made pursuant to s 33ZF of the Act and are common place in settlement of representative proceedings. 48 Section 33ZF provides: General power of Court to make orders (1) In any proceeding (including an appeal) conducted under this Part, the Court may, of its own motion or on application by a party or a group member, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding. (2) Subsection (1) does not limit the operation of section 22. 49 Certainly in Collin v Aspen Pharmacare Australia Pty Ltd [2013] FCA 952 and Thomas v Powercor Australia Limited [2011] VSC 614 the Court was prepared to make orders of the type sought by the applicants in this case. Perhaps more to the point I note the analysis of such orders by Wilcox J in McMullin v ICI Australia Operations Pty Ltd (1998) 84 FCR 1 at 4 where his Honour observed: Section 33ZF appears in Division 6 of Part IVA which is headed "Miscellaneous". It bears the marginal note "General power of Court to make orders". These two features support the conclusion, that would in any event arise from its wording, that s 33ZF(1) was intended to confer on the Court the widest possible power to do whatever is appropriate or necessary in the interests of justice being achieved in a representative proceeding. It is understandable Parliament should have thought it appropriate to make such a provision. In enacting Part IVA of the Federal Court of Australia Act, Parliament was introducing into Australian law an entirely novel procedure. It was impossible to foresee all the issues that might arise in the operation of the Part. In order to avoid the necessity for frequent resort to Parliament for amendments to the legislation, it was obviously desirable to empower the Court to make the orders necessary to resolve unforeseen difficulties; the only limitation being that the Court must think the order appropriate or necessary to ensure "that justice is done in the proceeding". I think an order fixing a date by which claimants must identify themselves is capable of falling within s 33ZF(1). The criterion "justice is done", involves consideration of the position of all parties. An order preventing unfairness to a particular party may be necessary to ensure justice is done in the proceeding. 50 I am satisfied that an order of this type pressed by the parties is supported by s 33ZF of the Act, and is not uncommon in settlement of representative proceedings. 51 In the present case I am also satisfied that group members have had a reasonable opportunity to not only be familiar with the proceeding given the length of the trial and the publicity associated with it, but to be informed of the requirement for registration if required. In particular I note that orders were made on 3 March 2015 requiring notices to be sent to Group Members as well as the publication of advertisements to put Group Members on clear notice of the effect of the potential closure of the class and the need to register if so required. I note further the submission of the respondents that the orders were directed to Group Members who were not known to the parties. 52 In her second affidavit filed 8 May 2015, Ms Carmichael deposes that a number of persons have in fact registered to participate in the proposed settlement. 53 I am also satisfied that an order of this type is not only fair and reasonable, but necessary to facilitate the settlement agreed by the parties and the distribution of the settlement proceeds in an efficient manner. 54 Finally, despite the apparent concern of ASIC in respect of provisions of the Deed concerning Registered Settling Group Members and their settlement sum, I am not persuaded that this constitutes a reason to refuse approval of the Deed. I form this view in light of the following factors: There is evidence before the Court to the effect that ASIC had been provided a copy of the Deed in February 2015 and apparently only identified its limited concerns in respect of the Deed on the day before the hearing after inquiries were made by the respondents' solicitors. I use the term "apparently" in that the only material before me that ASIC had concerns is in the evidence provided by the respondents' solicitors. It is in my view somewhat surprising that ASIC, if it had a concern in respect of the terms of the Deed, would simply express that concern to the respondent's solicitor, on the day before the approval hearing, and after extensive negotiations had occurred between relevant parties. In any event, I accept the submission of the respondents that the "discount rate" payable to Registered Settling Group Members as defined in the Deed is intended to result in such members receiving the same level of compensation in percentage terms as that provided to the Settling Group Members, who funded the representative proceedings. To that extent the purpose of the Deed is to treat Group Members in the same manner, and thereby promote the overall fairness of the proposed settlement. To the extent that ASIC appears concerned that CBA is "getting off lightly" in its payment of compensation to Registered Settling Group Members, I note that the Deed is the outcome of commercial negotiations between parties and should be amended only for good reasons. Further, I do not consider that the Court should approach the question of consideration of the fairness of the Deed in terms of whether CBA has paid "enough" money or is otherwise adequately "penalised" by the terms of the settlement. In his first affidavit filed 20 May 2015 Mr Williams deposed that, to the date of that affidavit, one person only had registered an interest in this respect, and it was unknown at that point whether that person would be entitled to any compensation. In the absence of supportive submissions I am not persuaded of the apparent utility of the proposal that any amount(s) representing the application of the discount rate to the compensation of Registered Settling Group Members should be donated to charity or otherwise dealt with. 55 I note the importance of the settlement being fair to all group members - including the one Registered Settling Group Member - and not merely the applicants and the respondents, however in the circumstances I consider it would be grossly unfair to refuse approval of the Deed and the associated scheme on the basis of the material before me.
Costs implications 56 Finally, there are numerous costs implications for consideration by the Court. 57 First, as Mr Campbell for the applicants submitted at the hearing, the costs of the applicants recognised by the Deed fall into two categories, namely Group Member contributions approved by the Court and additional solicitor/client costs and disbursements incurred by the applicants in the conduct of the proceedings that have not been paid as part of the Group Member contributions. The proposal of the parties in respect of these costs is that they be repaid and receive interest in accordance with normal Court rates. 58 In respect of costs the applicants rely on three affidavits sworn by Mr Andrew Perkins, a director of Williams Hall Chadwick Chartered Accountants, and the affidavit of Mr Joseph Mazzeo, an expert solicitor and legal costs consultant. 59 Annexed to Mr Perkins' first affidavit filed 8 May 2015 is an expert report prepared by him (and dated 7 May 2015) in which Mr Perkins identifies and quantifies each Group Member Contribution to the payment of the costs of the substantive proceedings, including interest calculated in accordance with Federal Court Practice Note CM 16. Mr Perkins calculated that the total reimbursement to eligible group members amounted to $5,794,944.60, including an interest component of $908,658.86. Mr Perkins prepared an Addendum Report dated 21 May 2015, exhibited to his second affidavit sworn 21 May 2015, and subsequently an Addendum Report dated 30 June 2015, exhibited to his third affidavit sworn 30 June 2015. Materially in his third Addendum Report dated 30 June 2015, Mr Perkins states: 1. This report has been prepared as per telephone instructions from Brett Imlay in relation to an extension of the interest calculations from 30th June to 31st July. 2. I have calculated the total interest on Group Member contributions on a 'Simple Interest' basis from the date of the contribution as per the Ledger card to the 31st July 2015, as per the revised instructions. 3. The total interest calculated on eligible Group Member Contributions over the period from the date of the first contribution to the 31st July 2015 is $969,235.88. 60 In paragraph 4 of that report Mr Perkins states that the combination of eligible Group Member Contributions and interest totals $5,855,521.62. 61 In his affidavit filed 13 May 2015 Mr Mazzeo analyses the billings of the applicants' solicitors and gives an expert opinion as to the reasonableness of the costs submitted for approval. Mr Mazzeo notes that: the billed invoices of the applicants' solicitors in accordance with the provisions of their retainer, less credit notes, totalled $8,390,770.15; the additional costs incurred up to 27 February 2015, including unbilled costs incurred in connection with the hearing of the application for approval of the proposed settlement, totalled $4,484,540.47; and the 25% apportioned costs of Dr Irving and Dr Oliver totalled $146,156.19. 62 In his affidavit Mr Mazzeo deposes, inter alia, that in his expert opinion those costs and disbursements incurred by the solicitors for the applicants were properly and reasonably incurred. 63 Consistent with paragraph 4 of Mr Perkins' third affidavit and Addendum Report, the applicants have provided the Court with a draft order in which the group member contributions with interest is calculated as $5,855,521.62. 64 I understand that this revised figure is not disputed by the respondents. 65 I am satisfied that the undisputed expert evidence of Mr Mazzeo and Mr Perkins should be accepted by the Court. I am prepared to make orders in terms agreed by the parties in respect of costs. 66 Second, it is important to make separate observations concerning the apportioned costs of Dr Oliver and Dr Irving. I have already noted that the applicants seek as part of the costs order that the sum of $146,156.19 be paid to Dr Anthony Oliver and Dr Mark Irving in respect of costs of individual actions commenced by those applicants up until 17 July 2012, which actions were stayed by Perram J and subsequently incorporated into the substantive proceedings. In his affidavit of 4 May 2015 Mr Levitt, the solicitor for the applicants with principal carriage of the matter, deposes as to this fact, and to Mr Levitt's view that 25% of the costs incurred by Dr Oliver and Dr Irving should properly be allocated to the costs in the representative proceedings because the group members had the benefit of about 25% of costs paid in relation to the actions of Dr Oliver and Dr Irving. At paragraphs 22 and 23 of his affidavit Mr Levitt deposes: 22. There was substantial intellectual cross-fertilisation, both actual and encouraged by me, between Counsel and several solicitors in my firm, who were engaged to work on the Sherwood v CBA Class Action and the individual proceedings brought by Drs Oliver and Irving. For example, the team of counsel working on the Sherwood v CBA Class Action has largely been the same as that which worked on Dr Oliver's action and Dr Irving's action. Although many of the specifics were different between the class action and the individual actions, the concepts advanced in each case, as applied to the respective facts, included the notion of the CBA breaching margin loan agreements, misleading and deceptive conduct and engaging in unconscionable conduct, and were pleaded similarly in each action. In fact, the pleading of the unconscionable conduct and misleading and deceptive conduct claims in Dr Oliver's action and Dr Irving's action were substantially adopted into the pleading of the Amended Statement of Claim in the Sherwood v CBA Class Action on 23 November 2011. 23. Copies of all tax invoices raised by Levitt Robinson in Irving and Oliver matters up to the date of Judgment on 17 July 2012, in which I have apportioned costs to the Sherwood v CBA Class Action, have been forwarded to Mr Joseph Mazzeo, Costs Consultant. 67 In his affidavit Mr Mazzeo gave evidence that the amount of $146,156.19 was reasonably and properly incurred. 68 It is clear that Mr Perkins has included this proposed 25% payment to Dr Oliver and Dr Irving in his determination of the amount of Group Members' contributions, pending the decision by the Court as to whether that sum ought be paid to those parties. 69 I note further that the respondents take a neutral stand in respect of this payment. 70 Based on the evidence of Mr Levitt, Mr Mazzeo and Mr Perkins I am satisfied that costs incurred in respect of the initial separate claims of Dr Oliver and Dr Irving were of benefit to the applicants in the representative proceeding, such that the 25% apportionment in the amount of $146,156.19, should be paid to Dr Oliver and Dr Irving as part of the Group Members' contributions.
Conclusion 71 In the circumstances I am satisfied that the terms of the Deed, including the amount of the settlement sum, the settlement scheme and the costs claimed by the applicants (including interest and the additional payment to Dr Oliver and Dr Irving) are fair and reasonable. I am prepared to approve the Deed and the settlement, and to make orders in the terms sought by the applicants.
INTERLOCUTORY APPLICATION FILED 15 MAY 2015 72 In their interlocutory application filed on 15 May 2015 the respondents sought specific orders in respect of the implementation of the proposed settlement, in summary being: an order requiring each person listed under an ASIC Client Code in the Settlement Spreadsheet annexed to the Deed to provide a release before CBA is obliged to pay compensation in respect of that Client Code; and orders requiring: ○ Settling Group Members and persons associated with them to take all steps necessary to enable the payment of compensation under the proposed settlement within four months of the approval of the proposed settlement; and ○ all things required to give effect to the approved settlement to be completed within six months of the date on which the Court approves the settlement. 73 These orders are not opposed by the applicants. 74 It is apparent from a perusal of relevant documentation that in numerous instances a "case name" in the Settlement Spreadsheet annexed to the Deed referable to a Settling Group Member included more than one person, and indeed included associated entities such as joint borrowers or investors, or persons with other interests in loans or investments including guarantors. Mr Hollo on behalf of the respondents submitted that there could be ambiguity in certain cases as to the identity of the specific Settling Group Member, which could result in potential error as well as additional time and expense. 75 Further, and significantly for the purposes of this interlocutory application, in his affidavit filed 15 May 2015 Mr Williams, solicitor for the respondents, deposed that during the course of the ASIC/CBA Settlement an investor or group of investors was allocated an ASIC Client Code, and it is for this reason that the ASIC Client Code is defined in the Deed and utilised in the list of Settling Group Members. 76 The effect of the order sought by the respondents in respect of each person listed under the relevant ASIC Client Code in the Settlement Spreadsheet or Registered Settling Group providing a release, would be to ensure that there is no unnecessary complication, delay or additional expense arising from the payment of compensation by CBA to Settling Group Members and their associated entities. In relation to the release sought by CBA from each person associated with a Settling Group Member, I consider this fair and reasonable in light of the manner in which the representative proceeding was conducted. I do not consider the terms of the order unfair on Settling Group Members or those associated entities, who presumably have coinciding interests in this litigation and in the prospect of receiving compensation. 77 In relation to the application by CBA for the imposition of time periods to give effect to the proposed settlement, the respondents submit that the proposed settlement requires Group Members or persons associated with them to take certain steps to allow CBA to pay them compensation, for example the provision of a release in accordance with the Deed or the nomination of a bank account into which any compensation payment may be made. In his affidavit filed 15 May 2015 Mr Williams deposes at [46]: Without such an order, CBA would be obliged to keep in place indefinitely all the necessary infrastructure and processes required to implement the settlement, until such time as all Settling Group Members have provided the necessary Releases and directions. Further, there is a risk that without such an order, a Settling Group Member may, by not providing the necessary releases and directions, be able to extend the benefit of the interest rate moratorium applying to their loans. This has the effect of both increasing the cost of the settlement and allowing those Settling Group Members to gain an unfair advantage. 78 This evidence is unchallenged. 79 In light of Mr Williams' evidence, I do not consider the conditions and the time frames contemplated by the respondents' interlocutory application to be unreasonable. In forming this view I particularly note the evidence of Mr Williams that CBA proposes, in implementing the settlement, to within two months of the approval date arrange for letters to be distributed to all Settling Group Members and Registered Settling Group Members addressing, inter alia: … the date by which a Settling Group Member must take all steps necessary to enable CBA to provide any compensation to the Settling Group Member, such that if a Settling Group Member does not do so, the Settling Group Member will not be entitled to receive any compensation pursuant to the Proposed settlement. (Affidavit of Gregory Williams filed 15 May 2015 cl 42(a)(xii).) 80 In the circumstances I am prepared to make the orders sought by the respondents in this interlocutory application. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.
Sherwood
Commonwealth Bank of Australia
[2007] VSC 306
[2011] VSC 614
(2013) 302 ALR 671
(1996) 71 FCR 250
(2006) 236 ALR 322
(2002) 121 FCR 480
(1998) 84 FCR 1
(1998) 192 CLR 603