Kelly v Willmott Forests Ltd (in liquidation) (No 6) [2019] FCA 745

Kelly v Willmott Forests Ltd (in liquidation) (No 6) [2019] FCA 745

Although the Court had power under s 43 and/or s 33ZF to award costs to a successful objecting class member, it was not appropriate to do so in the circumstances. The primary burden of protecting class members' interests was carried by the Court-appointed contradictor; Mr Braham should have relayed his concerns to the contradictor rather than separately instructing solicitors and counsel; his submissions were overstated and not central to the refusal of settlement approval; the revised settlements did not create a pool from which applicants or class members could pay his costs; M+K had acted on instructions and consistently with counsel's advice; and the respondents had already shared the...

Jurisdiction
Australia
Judgment Date
28 May 2019
Procedural Posture
Representative Proceedings; Application for Costs by a Group Member Who Objected to a Proposed Settlement / Heard on the Papers After Refusal of an Initial Settlement Approval Application and Subsequent Approval of Revised Settlements
Outcome
Application refused.
Legal Topics
['costs of Objecting Class Member' 'settlement Approval' 'court Approval Under S 33 V of the Federal Court of Australia Act 1976 (cth)' "court's Costs Discretion" 'contradictor in Class Action Settlement Approval']
['costs' 'representative Proceedings' 'commercial and Corporations' 'general and Personal Insolvency'] ['costs of Objecting Class Member' 'settlement Approval' 'court Approval Under S 33 V of the Federal Court of Australia Act 1976 (cth)' "court's Costs Discretion" 'contradictor in Class Action Settlement Approval']

Case Brief

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Procedural Posture

Representative Proceedings; Application for Costs by a Group Member Who Objected to a Proposed Settlement / Heard on the Papers After Refusal of an Initial Settlement Approval Application and Subsequent Approval of Revised Settlements

Legal Issues

  1. 1 ['Whether the Court had power to award costs in favour of a non-party class member who successfully objected to settlement approval.' "Whether the discretion under s 43 and/or s 33ZF of the Federal Court of Australia Act 1976 (Cth) should be exercised to order the applicants, respondents or M+K to pay Mr Braham's costs of objecting to the proposed settlements." 'Whether it was appropriate for Mr Braham to recover costs where the Court had appointed a contradictor whose fees were to be met by the applicants and respondents.']

Ratio Decidendi

Although the Court had power under s 43 and/or s 33ZF to award costs to a successful objecting class member, it was not appropriate to do so in the circumstances. The primary burden of protecting class members' interests was carried by the Court-appointed contradictor; Mr Braham should have relayed his concerns to the contradictor rather than separately instructing solicitors and counsel; his submissions were overstated and not central to the refusal of settlement approval; the revised settlements did not create a pool from which applicants or class members could pay his costs; M+K had acted on instructions and consistently with counsel's advice; and the respondents had already shared the...

Court Disposition

Application refused.

Orders

  • ['The application for costs by Mr Simon Braham is refused.']