Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd [2019] FCA 1500

Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd [2019] FCA 1500

It is appropriate to make a common fund order subject to a 25% cap on the funding commission, with the precise commission to be determined by the Court at a later stage, as this ensures equality of treatment among class members and allows informed opt-out decisions while preventing potential windfalls to the funder.

Parties
Applicant: Jones Asirifi-Otchere; First Respondent: Swann Insurance (Aust) Pty Ltd; Second Respondent: Insurance Australia Limited
Jurisdiction
Australia
Judgment Date
13 September 2019
Procedural Posture
Representative Proceedings (class Action) / Interlocutory Application for Common Fund Order and Opt Out Orders
Outcome
Application for common fund order granted, subject to filing agreed minute of orders reflecting reasons
Legal Topics
Common Fund Orders, Funding Commission Caps, Opt Out Orders
Practice and Procedure Class Actions Litigation Funding Common Fund Orders Funding Commission Caps Opt Out Orders

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 17 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

Jones Asirifi-Otchere

Applicant

Swann Insurance (Aust) Pty Ltd

First Respondent

Insurance Australia Limited

Second Respondent

Procedural Posture

Representative Proceedings (class Action) / Interlocutory Application for Common Fund Order and Opt Out Orders

Legal Issues

  1. 1 Whether a common fund order should be made to ensure justice is done in the proceeding
  2. 2 Whether it is appropriate to cap the funding commission at 25% of recovery
  3. 3 Whether the Court has power to make the proposed common fund order

Ratio Decidendi

It is appropriate to make a common fund order subject to a 25% cap on the funding commission, with the precise commission to be determined by the Court at a later stage, as this ensures equality of treatment among class members and allows informed opt-out decisions while preventing potential windfalls to the funder.

Court Disposition

Application for common fund order granted, subject to filing agreed minute of orders reflecting reasons

Orders

  • The parties file an agreed short minute of orders giving effect to these reasons by 20 September 2019
  • The costs of the applicant's interlocutory application dated 5 July 2019 be reserved