Guglielmin v Trescowthick (No 5) [2006] FCA 1385

Guglielmin v Trescowthick (No 5) [2006] FCA 1385

The Deed of Settlement, as amended, was approved because the settlement was a fair and reasonable compromise in light of the complexity and risks of the claims, the difficulty and cost of proving individual reliance and loss, the likely duration and expense of trial, the limited insurance funds available, senior counsel's advice supporting settlement, independent assessment of proposed costs and disbursements, due notice to group members, and the absence of opposition from Participating Group Members with more than 99 per cent positively supporting the settlement.

Jurisdiction
Australia
Judgment Date
12 October 2006
Procedural Posture
Representative Proceeding Under Pt IVA of the Federal Court of Australia Act 1976 (cth) / Motion for Court Approval of Settlement Under S 33 V of the Federal Court of Australia Act 1976 (cth)
Outcome
Settlement approved under s 33V of the Federal Court of Australia Act 1976 (Cth), with the Deed of Settlement amended; upon transfer of the Settlement Payment, judgment to be entered for the respondents with no order as to costs.
Legal Topics
['approval of Representative Proceeding Settlement' 'distribution of Settlement Fund' 'costs and Disbursements in Class Action Settlement' 'opt Out Group Members' 'alleged Misleading Financial Statements Concerning Harris Scarfe Holdings Ltd']
['class Actions' 'corporations Law' 'consumer Protection' 'negligence' 'civil Procedure'] ['approval of Representative Proceeding Settlement' 'distribution of Settlement Fund' 'costs and Disbursements in Class Action Settlement' 'opt Out Group Members' 'alleged Misleading Financial Statements Concerning Harris Scarfe Holdings Ltd']

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Procedural Posture

Representative Proceeding Under Pt IVA of the Federal Court of Australia Act 1976 (cth) / Motion for Court Approval of Settlement Under S 33 V of the Federal Court of Australia Act 1976 (cth)

Legal Issues

  1. 1 ['Whether the proposed Deed of Settlement should be approved under s 33V of the Federal Court of Australia Act 1976 (Cth).' 'Whether the proposed distribution of the settlement fund, including reimbursement of file administration fees, payment of costs and disbursements, and pro rata distribution to Participating Group Members, was fair and reasonable.' 'Whether group members had been duly notified of the proposed settlement and whether opt out persons should be excluded from being bound by the settlement.']

Ratio Decidendi

The Deed of Settlement, as amended, was approved because the settlement was a fair and reasonable compromise in light of the complexity and risks of the claims, the difficulty and cost of proving individual reliance and loss, the likely duration and expense of trial, the limited insurance funds available, senior counsel's advice supporting settlement, independent assessment of proposed costs and disbursements, due notice to group members, and the absence of opposition from Participating Group Members with more than 99 per cent positively supporting the settlement.

Court Disposition

Settlement approved under s 33V of the Federal Court of Australia Act 1976 (Cth), with the Deed of Settlement amended; upon transfer of the Settlement Payment, judgment to be entered for the respondents with no order as to costs.

Orders

  • ["Pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth), the Court approved the Deed of Settlement marked PJH15, as amended by deleting from cl 10.3 the words 'Upon approval of the settlement' and substituting 'Upon transfer of the Settlement Payment as provided for in clause 4.4 of this Deed'." 'Upon...