This is an application to approve a settlement of proceedings under s 76(4) Civil Procedure Act 2005 (NSW). The plaintiffs commenced these proceedings on 25 May 2022 against the first, second and third defendants (referred to jointly as Pitcher Partners) seeking compensation for breach of fiduciary duty, knowing assistance, breach of trust, deceit, and misleading or deceptive conduct.
On 20 December 2024, Pitcher Partners made an offer of compromise in the sum of $25 million plus costs. That offer was conditional on court approval of the settlement under s 76 Civil Procedure Act.
The offer of compromise lapsed on 10 January 2025 but was made again on 30 January 2025. The plaintiffs accepted the offer on 31 January 2025.
For the reasons that follow, I consider that the settlement should be approved.
[2]
Background
Mrs Twigg and her daughters and related companies brought earlier proceedings against Mrs Twigg's son, Max Twigg and his related companies concerning the distribution of money and sale proceeds of the "Twigg Group". Those proceedings were determined favourably for the plaintiffs, who recovered about $35 million from Max Twigg and his related entitles: Twigg v Twigg (No 4) [2020] NSWSC 1159; Twigg v Twigg (No 5) [2020] NSWSC 1782; Twigg v Twigg (No 6); Twigg v Twigg [2021] NSWCA 38.
In the course of those proceedings, Mrs Twigg's lawyers formed the view that Pitcher Partners were involved in resolutions of the corporate plaintiffs, which ought not to have been made in the particular circumstances that they were made.
Section 76 of the Civil Procedure Act applies to these proceedings because during the course of the proceedings, on 11 October 2022, Mrs Twigg became "a person under legal incapacity", having been diagnosed with early-stage dementia. Mrs Twigg's daughter, Ms Flintoft, was appointed as her tutor: sub-s (1)(b).
To approve the settlement, the Court must be satisfied that it is beneficial to Mrs Twigg's interests: see Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1 at [29] (Hammerschlag J, as his Honour then was).
[3]
Confidentiality of exhibit CR-1
I have had regard to the pleadings, the previous judgments in Mrs Twigg's disputes with Max Twigg and others, the plaintiffs' written submissions, Pitcher Partners' written submissions, and the affidavit of Christiaan Roberts sworn 6 February 2025.
Mr Roberts' affidavit exhibits exhibit CR-1, which is an advice from the plaintiffs' senior and junior counsel. The plaintiffs have sought an order keeping that exhibit confidential and I have made such an order. In making the determination under s 76 Civil Procedure Act, the Court may have regard to the confidential advice from counsel for the incapable person: see eg DS bht SJ v New South Wales [2024] NSWSC 664 at [6] (Weinstein J).
[4]
Determination
Based on the material before me, I am satisfied that the settlement is in the best interests of Mrs Twigg for the following reasons.
First, the $25 million settlement sum represents almost the entire $28 million of net cash proceeds of sale that were not recovered from Max Twigg and his companies following Twigg v Twigg (No 4).
Secondly, if the plaintiffs were to pursue their claims instead of accepting the settlement offer, there is a risk that Pitcher Partners may succeed in defending the plaintiffs' claims on the basis of causation, issues with the plaintiffs' liability case, and quantum of the claimed loss. In this regard, I have considered Pitcher Partners' draft opening written submissions that would have been relied upon at the hearing, in which those various risks are highlighted.
Given the possibility that the plaintiffs' claims could fail or could only achieve a lesser amount, taking that risk to pursue an additional $3 million in equitable compensation would neither be prudent nor in the best interests of Mrs Twigg.
Thirdly, Mrs Twigg is 78 years old and suffers from not only from worsening cognitive decline, but also a heart condition. There is a real chance that, should the litigation continue, either side may appeal the outcome and delay a final resolution for Mrs Twigg.
Fourthly, in respect of the amount that Mrs Twigg will receive, the plaintiffs propose to divide the $25 million settlement sum by paying $12 million to Mrs Twigg, $7 million to Ipswich Landfill Pty Ltd (the second plaintiff), and $6 million to Brooklyn Landfill & Waste Management Pty Ltd (the third plaintiff). That apportionment was chosen to mirror Ball J's findings in earlier proceedings where Mrs Twigg received 48%, Ipswich received 28%, and Brooklyn received 24% of the traceable proceeds of the sale of the Twigg Group business: see Twigg v Twigg (No 5) at [50] and Twigg v Twigg (No 6) at [28]. I consider that this division is appropriate and is in the best interests of Mrs Twigg.
Therefore, I am satisfied that what is proposed is well within the appropriate range for settlement and that I should approve it in accordance with s 76(4) Civil Procedure Act as being in Mrs Twigg's best interests.
[5]
Disbursement of the settlement sum
Money recovered in any proceedings on behalf of a person under legal incapacity is to be paid into Court unless the Court otherwise orders: ss 77(1)-(3) Civil Procedure Act.
Mrs Twigg's tutor seeks orders that her $12 million share of the settlement sum be paid into the trust account of the plaintiffs' solicitors, and from there, disbursed to Moore Australia (the plaintiffs' financial advisers and wealth managers) and/or Asset Class Financial Planning (which might be engaged in the future to provide financial advisory and wealth management services to the plaintiffs). Payments out of the solicitors' trust account will be made in amounts decided upon by Mrs Twigg's daughters, being Ms Flintoft and Ms Frances Lambert, who hold Mrs Twigg's enduring power of attorney.
I consider it appropriate to make those orders.
[6]
Orders
For these reasons, I make the following orders:
1. Pursuant to section 76 of the Civil Procedure Act 2005 (NSW), the Court approves the settlement of these proceedings as between the plaintiffs and the first to third defendants on the terms set out in the letters dated 20 December 2024 and 30 January 2025 appearing at Annexure A to the affidavit of Christiaan Roberts sworn 6 February 2025.
2. Pursuant to section 77(3) of the Civil Procedure Act, the Court directs that the "Principal Settlement Sum" and the "Costs Settlement Sum" (as defined in the 20 December 2024 letter) be paid into the plaintiffs' solicitors' trust account.
3. The Court notes that the Principal Settlement Sum is to be apportioned between the plaintiffs as follows:
1. The first plaintiff: $12,000,000;
2. The third plaintiff: $7,000,000; and
3. The fourth plaintiff: $6,000,000.
1. Further to (2) and (3) above, pursuant to section 77(3) of the Civil Procedure Act, the $12,000,000 received on behalf of the first plaintiff may be disbursed in such proportions as the first plaintiff's tutor and attorneys may direct to:
1. Moore Australia (first plaintiff's financial advisor), and/or
2. Asset Class Financial Planning Pty Ltd (first plaintiff's financial advisor to be appointed).
1. Exhibit CR-1 to the affidavit of Christiaan Roberts sworn 6 February 2025:
1. Is to be kept confidential and not disclosed to any party or person other than the plaintiffs and the Court, and
2. Is to be returned to the plaintiffs upon the resolution of this notice of motion.
1. Liberty to apply on two business days' notice specifying the relief sought.
2. Note that, as between the plaintiffs and the first to third defendants, the proceeding has settled on the terms set out in the letters dated 20 December 2024 and 30 January 2025 appearing at Annexure A to the affidavit of Christiaan Roberts sworn 6 February 2025.
3. Note that upon payment by the first to third defendants to the plaintiffs of the "Principal Settlement Sum" (as defined in the 20 December 2024 letter), within 28 days from the making of order 1 approving the settlement, the plaintiffs and the first to third defendants will seek orders by consent as follows:
1. The proceedings as between the plaintiffs and the first to third defendants be dismissed, and such dismissal is to operate so as to prevent the plaintiffs from bringing fresh proceedings or claiming the same relief in fresh proceedings against the first to third defendants;
2. The first to third defendants are to pay the plaintiffs' costs of the proceedings against the first to third defendant as agreed or assessed.
1. Note that, in the event the plaintiffs and the first to third defendants reach agreement as to the "Costs Settlement Sum" (as defined in the 20 December 2024 letter) within 28 days from the making of orders 1 approving the settlement, and that amount is paid back within the 28 day period, the plaintiffs and the first to third defendants will seek, alternatively to the notation in paragraph 8 above, orders by consent as follows:
1. The proceedings as between the plaintiffs and the first to third defendants be dismissed, and such dismissal is to operate so as to prevent the plaintiffs from bringing fresh proceedings or claiming the same relief in fresh proceedings against the first to third defendants;
2. No order as to costs of the proceedings as between the plaintiffs and the first to third defendants.
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Decision last updated: 19 February 2025