Evans v Davantage Group Pty Ltd (No 4) [2021] FCA 1634

Evans v Davantage Group Pty Ltd (No 4) [2021] FCA 1634

It was just under s 33V(2) to distribute the residual settlement sum by substituting a suitable charity for participating group members in the 56.5% tranche and paying 43.5% to Vannin. Participating group members had already been fully compensated and should not receive a windfall. The respondent had paid a fixed settlement sum to buy finality and had not bargained for any return of surplus, so repayment to it would give it more than it bargained for. Vannin's share was justified because the surplus existed substantially because Vannin had accepted a reduced commission at settlement approval, and the resulting further payment remained within a just remuneration range.

Jurisdiction
Australia
Judgment Date
22 December 2021
Procedural Posture
Representative Proceeding / Post Settlement Approval Application for Distribution of Residual Settlement Fund Under S 33 V(2) of the Federal Court of Australia Act 1976 (cth)
Outcome
The respondent's claim to the residual sum and the applicant's proposal to distribute the 56.5% tranche to participating group members were rejected. The Court ordered the remaining surplus to be distributed 56.5% to the Consumer Action Law Centre and 43.5% to Vannin Operations Limited, with costs of the present...
Legal Topics
['distribution of Settlement Surplus' 'cy Près Type Orders' 'section 33 V(2) Settlement Distribution Powers' 'litigation Funding Commission' 'windfall Gains to Group Members' 'return of Residual Settlement Funds to Respondent']
['representative Proceedings' 'commercial and Corporations' 'corporations and Corporate Insolvency' 'equity' 'litigation Funding'] ['distribution of Settlement Surplus' 'cy Près Type Orders' 'section 33 V(2) Settlement Distribution Powers' 'litigation Funding Commission' 'windfall Gains to Group Members' 'return of Residual Settlement Funds to Respondent']

Case Brief

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Procedural Posture

Representative Proceeding / Post Settlement Approval Application for Distribution of Residual Settlement Fund Under S 33 V(2) of the Federal Court of Australia Act 1976 (cth)

Legal Issues

  1. 1 ['What statutory or other powers, including equitable jurisdiction, the Court possessed in respect of the residual settlement sum and the conditions for exercising those powers.' 'Whether the residual sum should be distributed to participating group members, returned to the respondent, paid to a charity by a cy-près type order, or paid in part to the litigation funder.' 'Whether s 33V(2) of the Federal Court of Australia Act 1976 (Cth) empowered the Court to make a cy-près type order in respect of the residual settlement sum.' 'Whether participating group members, having been fully compensated, should receive an additional distribution from the residual sum.' 'Whether Vannin Operations Limited should receive a further amount from the residual sum in light of its reduced commission at settlement approval.']

Ratio Decidendi

It was just under s 33V(2) to distribute the residual settlement sum by substituting a suitable charity for participating group members in the 56.5% tranche and paying 43.5% to Vannin. Participating group members had already been fully compensated and should not receive a windfall. The respondent had paid a fixed settlement sum to buy finality and had not bargained for any return of surplus, so repayment to it would give it more than it bargained for. Vannin's share was justified because the surplus existed substantially because Vannin had accepted a reduced commission at settlement approval, and the resulting further payment remained within a just remuneration range.

Court Disposition

The respondent's claim to the residual sum and the applicant's proposal to distribute the 56.5% tranche to participating group members were rejected. The Court ordered the remaining surplus to be distributed 56.5% to the Consumer Action Law Centre and 43.5% to Vannin Operations Limited, with costs of the present...

Orders

  • ["After the payment of the applicant's legal costs and the legal costs of Vannin Operations Limited (the funder) referred to in order 2, any remaining surplus of the settlement fund be distributed: (a) as to 56.5%, to the Consumer Action Law Centre; and (b) as to 43.5%, to the funder." 'To the extent not already...