Liprini v Thirdi William Street Pty Ltd

Supreme Court New South Wales Amendment notes Medium Neutral Citation: Liprini v Thirdi William Street Pty Ltd [2026] NSWSC 1078 Hearing dates: 28 August 2026 Date of orders: 8 September 2026 Decision date: 08 September 2026 Jurisdiction: Equity - Commercial List Before: Pike J Decision: Settlement of part of representative proceedings approved. See paragraph [62] for final orders made. Catchwords: CIVIL PROCEDURE — representative proceedings — Court approval — representative proceedings concerning alleged defective work in the construction of dwellings in a development — funding group members and unfunding group members — whether settlement is fair and reasonable — deductions from settlement sum for administrator and legal costs — settlement approved Legislation Cited: Civil Procedure Act 2005 (NSW), ss 173, 179, 183 Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8 Cases Cited: Haselhurst v Toyota Motor Corporation Australia Pty Ltd [2022] NSWSC 1076 Hegemann v Tannous & Ors [2024] NSWSC 39 Petersen Superannuation Fund Pty Ltd v Bank of Queensland (No 3) [2018] FCA 1842 Smith v Australian Executor Trustees Limited; Creighton v Australian Executor Trustees Limited (No 4) [2018] NSWSC 1584 Texts Cited: Nil Category: Procedural rulings Parties: Keiran Liprini (Plaintiff) Thirdi William Street Pty Ltd (First Defendant) H&M Constructions (NSW) No. 2 Pty Ltd (In

Liquidation) (Second Defendant) Kimy Air Conditioning Pty Ltd (Fourth Defendant) Scott Collis Consulting Pty Ltd (Fifth Defendant) Aiken Design and Consulting Pty Ltd (Sixth Defendant) David Mathew Aiken (Seventh Defendant) Adam Marshall (Eighth Defendant) Thirdiproperty Pty Ltd (Ninth Defendant) Representation: Counsel: M Swanson (Plaintiff) T Davie (First, Eighth and Ninth Defendant) E Ball (Fifth Defendant) Solicitors: Bradbury Legal (Plaintiff) Williamson Lawyers (First, Eighth and Ninth Defendant) Moray & Agnew (Fourth Defendant) Colin Biggers & Paisley (Fifth Defendant) Stewart Cuddy & Mockler (Sixth and Seventh Defendant) File Number(s): 2022/00184814 Publication restriction: Nil

JUDGMENT These proceedings are representative proceedings under Pt 10 of the Civil Procedure Act 2005 (NSW) (CPA). They concern a development located at 31-41 William Street , Alexandria, NSW (the Development). The Development consists of 37 Torrens Title terraces with a basement carpark. The current group members in the proceedings are the persons or companies who are the registered proprietors and/or owners of a lot in the Development and/or are persons interested in the works carried out and/or maintenance of common property, or easements, to one or more of the lots in the Development (Group Members). Stated at an extremely high level, claims are made in the proceedings against various defendants for alleged defective work in the construction of the dwellings in the Development. Kieran Liprini (the plaintiff) has settled the proceedings against the fifth defendant, Scott Collis Consulting Pty Ltd (SCC). By motion filed 27 March 2026, the plaintiff seeks orders pursuant to ss 173 and 183 of the CPA approving the settlement. Orders were made for notice to be given to the Group Members of the settlement and the proposed approval hearing. Only one Group Member, Jeremy Chow (Mr Chow) filed a notice of objection to the proposed settlement (the Chow Objection). I heard the motion on 28 August 2026. Michael Swanson (Mr Swanson) of counsel appeared for the plaintiff. Tom Davie of

counsel appeared for the first, eighth and ninth defendants. Eli Ball appeared for SCC. At the conclusion of the hearing, I indicated that I was prepared to approve the settlement, subject to the provision of revised orders. Those orders have now been provided. These reasons explain why I have approved the settlement, and set out at the end, the orders that I have made to give effect to that approval. The evidence relied on The plaintiff relied on the following evidence: affidavit of Ashleigh Vumbaca dated 27 March 2026 and exhibit AVV-1 to that affidavit; affidavit of Ashleigh Vumbaca dated 7 August 2026 and exhibits AVV-5 and AV-6 to that affidavit; affidavit of a costs assessor, Paul Taylor (Mr Taylor) dated 7 August 2026 annexing his report dated 7 August 2026 (Taylor Report); and confidential advice of Mr Swanson of counsel as to the reasonableness of the proposed settlement (Confidential Advice). I also received into evidence and have considered the Chow Objection. As is customary in applications of this kind, some of the material received on the application is confidential. At the commencement of the hearing, I made interim orders pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW). As part of my final orders set out at the end of these reasons, I have made more refined final orders in this regard. In determining to approve the settlement, I have

been greatly assisted by the Confidential Advice which was supplemented by further oral submissions by Mr Swanson during the hearing on 28 August 2026, in which part of the hearing was conducted in closed court in the absence of the parties and the public. Upon an application for approval, “the Court is entitled to and should place considerable weight on those opinions”: Smith v Australian Executor Trustees Limited; Creighton v Australian Executor Trustees Limited (No 4) [2018] NSWSC 1584 at [48]. A brief overview of the proceedings and the proposed settlement As set out above, the proceedings relate to alleged defective work in connection with the construction of dwellings in the Development. The proceedings were commenced on 24 June 2022. The current “pleadings” are a further amended summons and further amended commercial list statement filed 13 March 2026. There are a number of defendants: Thirdi William Street Pty Ltd (Developer); H&M Constructions (NSW) No 2 Pty Ltd (H&M) – (Builder) (now in liquidation); Kimy Air Conditioning Pty Ltd (Kimy Air) – HVAC Contractor; SCC – Hydraulic Contractor; Aiken Design and Consulting Pty Ltd (Aiken D&C) (now in liquidation); David Aiken – Electrical Contractor; Adam Marshall – Project Manager, Construction Manager, Construction Manager and Supervisor; and Thirdi Property Pty Ltd (Thirdi Property) – employer of Mr Marshall. Owners of

eight lots have opted out of the proceedings. Currently, there remain 29 lots for which no owner has filed any opt-out notice. The remaining Group Members should relevantly be divided into two groups. First, Funding Group Members, being Group Members who have executed a funding agreement with the plaintiff and have each made payments of legal fees ($28,000) to the plaintiff’s solicitors. Second, Unfunding Group Members, being Group Members who have not executed a funding agreement with the plaintiff and have accordingly not made payments of legal fees to the plaintiff’s solicitors. This distinction is relevant to the proposed distribution of the net settlement proceeds. A variety of causes of action are alleged in the proceedings against the various defendants, originating from allegations of multiple defects. It is not necessary to set them out in any detail. The proceedings have reached the stage where the plaintiff and the active defendants (between the first to eighth defendants) have completed their pleadings and their evidence. Amendments have also been made to the pleadings since that evidence has been filed and as such the next step is for further evidence to be filed. There have been two mediations in these proceedings – in July 2024 and 11 November 2025. The only settlement reached is with SCC. Once the evidence is complete, the matter will be listed for hearing. The

current estimate is a hearing of two to three weeks. The terms of the settlement are set out in a Settlement Deed dated 21 July 2026 (Settlement Deed). The essence of the settlement reached between the plaintiff and SCC is for all claims made against SCC (the Hydraulic Design Defects) to be settled in return for a payment by SCC of $600,000, inclusive of costs and interest (Settlement Sum). The Hydraulic Design Defects are also alleged against the Developer. The settlement also involves those defect claims being withdrawn from the proceedings for reasons which I explain below. Two deductions are proposed to be made from the Settlement Sum before distribution to the Group Members. First, a $208,000 deduction to Bradbury Legal (the plaintiff’s lawyers) for legal costs and disbursements referable to the claims against SCC. Second, up to a $20,000 deduction to Joanne Dunn and Kelly-Anne Lavina Trenfield of FTI Consulting for Settlement Administrator’s fees. A Settlement Distribution Scheme has been prepared pursuant to which all Group Members who are current owners of lots will each receive an equal amount of $10,362.06 (total $300,500) as damages in compensation for each of the Hydraulic Design Defects. Further, each Funding Group Member will receive an additional amount of $6,500 (total $71,500) (Funding Equalisation Factor). Relevant principles The principles that I am to apply

in determining whether to approve the settlement are well understood. I gratefully adopt what Chen J said in Hegemann v Tannous & Ors [2024] NSWSC 39 at [24]-[26]: [24] Section 173 of the CPA relevantly provides: 173 Approval of Court required for settlement and discontinuance (1) Representative proceedings may not be settled or discontinued without the approval of the Court. (2) If the Court gives such approval, it may make such orders as are just with respect to the distribution of any money, including interest, paid under a settlement or paid into the Court. [25] On an application for approval of a settlement of representative proceedings, the fundamental question posited by s 173 of the CPA is whether the proposed settlement is “fair and reasonable in the interests of the group members considered as a whole. The Court’s role in relation to group members is supervisory and protective”: Findlay v DSHE Holdings Ltd; Mastoris v DSHE Holdings Ltd; Mastoris v Allianz Australia Insurance Ltd (2021) 150 ACSR 535; [2021] NSWSC 249 at [12] (‘Findlay’). [26] The various principles that have developed that inform the Court’s response to this fundamental question are both well-established and well-known. They were (relevantly) set out in Johnston v Endeavour Energy [2016] NSWSC 1132 at [22] (‘Endeavour Energy’) as follows (citations omitted): 1. The central question for the Court is whether the proposed settlement is fair and reasonable in the interests of the group members as a whole.

2. There will rarely be one single or obvious way in which a settlement should be framed, either between group members and the defendants (inter partes aspects) or in relation to sharing the compensation among group members (inter se aspects) – reasonableness is a range and the question is whether the proposed settlement is within that range.

3. It is not the task of the Court to “second-guess” or go behind the tactical or other decisions made by the plaintiff’s legal representatives, but rather to satisfy itself that the decisions are within the range of reasonable decisions according to the known circumstances and the reasonably perceived risks of the litigation.

4. In assessing the fairness and reasonableness of a proposed settlement the court relies heavily upon the candid, frank and confidential opinions provided to it by the plaintiff’s legal representatives requiring them to disclose the factors which were material to the decision to accept the settlement. 5. … some of the considerations typically relevant to an assessment of an application for approval… are: (a) The complexity and duration of the litigation. (b) The reaction of the class to the settlement. (c) The stage of the proceedings. (d) The risks of establishing liability. (e) The risks of establishing damages. (f) The risks of maintaining a class action. (g) The ability of the defendants to withstand a greater judgment. (h) The range of reasonableness of the settlement in light of the best recovery; and (i) The range of reasonableness of the settlement in light of all of the attendant risks of litigation. It is also useful to keep in mind what Rees J said in Haselhurst v Toyota Motor Corporation Australia Pty Ltd [2022] NSWSC 1076 (Haselhurst) at [20]: 20. Thus, the first question is whether the settlement is reasonable inter partes, that is, between the representative plaintiff and defendant in each proceeding. The second question is whether the settlement is fair and reasonable inter se, that is, between group members. In determining these questions, the Court must be

satisfied that the settlement has been undertaken in the interests of the group members as a whole and not just in the interests of the representative plaintiff and the defendant: Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258 (per Branson J). Further, as Goldberg J outlined in Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925 at [19]: Ordinarily in such circumstances the Court will take into account the amount offered to each group member, the prospects of success in the proceeding, the likelihood of the group members obtaining judgment for an amount significantly in excess of the settlement offer, the terms of any advice received from counsel and from any independent expert in relation to the issues which arise in the proceeding, the likely duration and cost of the proceeding if continued to judgment, and the attitude of the group members to the settlement. In line with the authorities, the Court’s role is protective of the Group Members. The task is an onerous one. I propose to first consider the two questions posed in Haselhurst above, then consider the Chow Objection before considering the proposed deductions for legal costs and Settlement Administrator’s fees. It is of some significance, in my view, that apart from Mr Chow (whose objection I deal with below and which appears to be based on a

misapprehension), no Group Member objects to the settlement or to the proposed distribution. Reasonableness and fairness – inter partes Given that this is a settlement against only one defendant, and the remainder of the proceedings are to continue, it is appropriate that I am somewhat cautious in disclosing in any great detail the contents of the Confidential Advice. The Confidential Advice contains a frank assessment of the issues arising in relation to the Hydraulic Design Defects, including issues in relation to recoverability. The analysis in the advice demonstrates that the proceedings are complex, and that there are a range of outcomes depending on what defects are found to exist and what scope and cost of rectification is accepted. No defendant has admitted the relevant defects exist. Having regard to this analysis, I am comfortably satisfied that the Settlement Sum is well within a reasonable range of settlement sums. I am also conscious that the Settlement Sum was achieved after a second mediation, such that any greater offer is unlikely to be made. I am also satisfied that it is appropriate for the settlement to include the Hydraulic Design Defects being removed from the proceedings altogether. Absent the allegations being removed, SCC would be at considerable risk that the Developer would cross-claim against SCC for its (the Developer’s) liability to Group Members.

The prospect of an indemnity being offered by the plaintiff to SCC in respect of such claims is not realistically available in representative proceedings such as the present. Reasonableness and fairness as between Group Members I begin by repeating what I have set out above, that apart from Mr Chow, no Group Member has objected to the settlement or the proposed distribution. All Group Members, including former owners, have been given notice in this regard. In circumstances where the compensation to be paid to Group Members is intended to compensate for defects which will need to be rectified, I am satisfied that it is reasonable for only current lot owners to receive a portion of the Settlement Sum. No claim is advanced in the proceedings for loss on sale of a property by reason of the defects alleged. It is therefore appropriate that former owners do not receive any proportion of the Settlement Sum. As between current lot owners, an equal distribution (ignoring Funding Equalisation Factor) is appropriate. There is no suggestion that the Hydraulic Design Defects are localised in the sense that they apply to only particular lots in the Development. The nature of the relevant defects are such that they are likely to have an equal impact (in terms of costs to rectify) on all current lot owners in the Development. Given the net settlement amount, with the resultant amount to be

paid to Group Members, any attempt to assess loss on an individual Group Member basis would, in my view, likely be costly and wholly disproportionate in the circumstances. Consequently, all Group Members would be worse off if a proportion of the net Settlement Sum were to be used for this purpose. As between Funding Group Members and Unfunding Group Members, a Funding Equalisation Factor is also appropriate. If there is no equalisation, the Unfunding Group Members will receive a windfall in that they will receive the full benefit of the settlement without having paid any costs towards it. This cost has been borne by the Funding Group Members. The $6,500 figure for each Funding Group Member has been derived on the basis of a reimbursement of approximately 23% of the legal costs they have paid. The 23% figure is also relevant to the legal costs to be paid. It has been determined by the plaintiff’s solicitor on the basis set out below when dealing with legal costs. I am satisfied that, in the circumstances of the overall Settlement Sum, this is a rational and reasonable approach to the issue. No one has, relevantly, objected. The Chow Objection I have carefully considered the Chow Objection, including with counsel for the plaintiff. The Chow Objection appears to be premised on two matters: that he has been recorded in the Settlement Distribution Scheme as only having contributed

$23,000 (and not $28,000) towards the plaintiff’s costs; and he will lose his rights as a Group Member if the settlement is approved. As to the first matter, all Funding Group Members are being treated equally in terms of the Funding Equalisation Factor – on the basis that they have paid $28,000 towards the plaintiff’s legal costs. Mr Chow’s contention is thus not factually correct. Second, Group Members, whether they be current or former owners of lots in the Development, do not lose any rights going forward. Each will remain a Group Member. The matters raised in the Chow Objection do not provide a sufficient reason for not approving the settlement. Deductions from the Settlement Sum I deal first with the much smaller amount – $20,000 for Settlement Administrator’s Costs. Whilst the present settlement is clearly at the less complex and involved end of the spectrum of settlements in representative proceedings, the $20,000 figure (which is a cap) is well within the bounds of reasonableness. I turn now to the larger proposed deduction – $208,000 to the plaintiff’s lawyers for legal costs. In this regard it is clear that the role of the Court is, again, protective and supervisory in nature: Petersen Superannuation Fund Pty Ltd v Bank of Queensland (No 3) [2018] FCA 1842 at [88]. I am conscious of this role and its onerous nature. The approach taken in the present case to derive

the $208,000 may be summarised as follows: the plaintiff’s solicitor identified the legal work that related solely to the claims advanced against SCC. All of these costs have been included; the plaintiff’s solicitor then allocated a proportion of the remaining general costs of the proceedings to reflect the fact that an aspect of those general costs should be allocated to the claims against SCC. The allocation has been based on the number of defendants in the proceedings from time to time. From the commencement of the proceedings until 31 October 2023, there were four defendants and as such 25% has been allocated to SCC. From 1 November 2023, until the date of settlement, there were six defendants, and so 16.6% of the general costs in that period have been allocated to SCC; the costs incurred or to be incurred in the preparation for, and hearing of the motion for approval of the settlement have all been included; and certain costs were then excluded for several reasons including that they related to claims against defendants other than SCC, or were otherwise covered by costs orders in the proceedings. An experienced costs assessor, Mr Taylor, has then reviewed the material and expressed an opinion (in the Taylor Report) as to whether the legal costs are fair, reasonable and proportionate, and whether the costs related to the settlement approval are fair, reasonable and

proportionate. In the course of preparing his report, Mr Taylor has made certain deductions from the amounts identified to him. I have carefully considered the Taylor Report. I am satisfied that Mr Taylor has properly considered whether the costs identified to him are fair, reasonable and proportionate. I am also satisfied that in the circumstances, the approach taken by the plaintiff’s solicitor to estimate the legal costs attributable to the claims against SCC, is a reasonable one. I am thus satisfied that $208,000 should be deducted on account of legal costs. Amendment to pleadings and amendment to Group Members As part of the settlement and the proceedings generally, the plaintiff seeks leave to amend the schedule of Group Members. The effect of the amendment is to include persons who have purchased a lot in the Development since the proceedings commenced as well as the former owners of lots who have not opted out of the proceedings. There is no reason why, in my view, leave should not be granted to make these changes. No prejudice is caused. Conclusion and orders For the reasons set out above, I am satisfied that I should approve the settlement against SCC, including the Settlement Distribution Scheme which includes the deductions from the Settlement Sum. The Court makes the following orders to give effect to the approval. Confidentiality Pursuant to ss 7 and 8(1)(a) of

the Court Suppression and Non-publication Orders Act 2010 (NSW), and subject to any further order of the Court, in order to prevent prejudice to the proper administration of justice the following evidence filed by the Plaintiff is not to be disclosed to any person or entity for the period of 5 years after the proceedings 2022/00184814 are concluded, or 10 years from the date of this order, whichever is longer: In Exhibit AV-6 to the Affidavit of Ashleigh Vumbaca affirmed 7 August 2026: the column titled Settlement Notice Service Method in the table appearing at pages 1-6 and pages 7–31; Appendices 4-7 to Annexure A to the Affidavit of Paul Taylor affirmed 7 August 2026; and Advice prepared by Michael Swanson, counsel for the Plaintiff, dated 7 August 2026. The First Defendant has liberty to apply on 7 business days’ notice to seek to vary any matter arising from order 1 above. Amended Pleadings The Plaintiff is granted leave to file the Second Further Amended Summons and Commercial List Statement (SFASCLS) emailed to the Associate to the Honourable Justice Pike on 1 September 2026. Settlement Approval Orders Pursuant to s 183 of the Civil Procedure Act 2005 (NSW), the Plaintiff is authorised, nunc pro tunc, to enter into the Deed of Settlement dated 21 July 2026 between the Plaintiff and the Fifth Defendant (Deed) and to give effect to the settlement and all transactions

contemplated by it for and on behalf of the Group Members. Pursuant to ss 173 and 183 of the Civil Procedure Act 2005 (NSW), the Court approves: the settlement between the representative Plaintiff and the Fifth Defendant upon the terms set out in the Deed; and the distribution of the Settlement Sum among Group Members in accordance with the Settlement Distribution Scheme. Pursuant to s 179 of the Civil Procedure Act 2005 (NSW), the persons affected and bound by the settlement of the proceeding are the Plaintiff, the Fifth Defendant, and any Group Members as defined in paragraph A2 and schedule A of the SFASCLS, save for any person who has opted out of the proceeding. Joanne Emily Dunn and Kelly-Anne Lavina Trenfield of FTI Consulting to be appointed Administrators of the Settlement Distribution Scheme. Deductions Pursuant to ss 173(2) and 183 of the Civil Procedure Act 2005 (NSW), the following amounts are approved for the purposes of the Settlement Distribution Scheme (utilising defined terms from it): the sum of $208,000 (inclusive of GST) as the Plaintiff’s Approved Costs; and the sum of up to $20,000.00 (inclusive of GST) as the Settlement Administrators’ costs. The amounts be paid from the Settlement Sum are to be the amounts set out in the Settlement Distribution Scheme, as follows: an amount of $208,000 paid to the Plaintiff’s solicitors, Bradbury Legal Pty Ltd, as the

Plaintiff’s Approved Costs; an amount up to $20,000.00 (inclusive of GST) paid to FTI Consulting, as the Settlement Administrators’ costs; and an amount up to $372,000 (inclusive of GST) being the Residual Settlement Sum to be paid to FTI Consulting as the Administrators to be paid to Group Members in accordance with the Settlement Distribution Scheme. Any costs orders made in the proceeding between the Plaintiff and the Fifth Defendant be vacated. No order as to the costs of the proceedings as between the representative Plaintiff and the Fifth Defendant. Completion of Administration Within 20 business days of the Settlement Administrator disbursing from their trust account, the final balance of Residual Settlement Sum to Group Members, the Settlement Administrator shall file and serve an affidavit as to the total amounts paid to each Group Member as set out in the Settlement Distribution Scheme. Dismissal The Proceedings against the Fifth Defendant, be dismissed with no further orders as to costs. Notations to order 12: The parties’ intention in consenting to the dismissal is that: (i) the proceedings will not be brought again, and that the dismissal is to have the same force and effect as a final determination on the merits. (ii) the Plaintiff be barred from bringing fresh proceedings against the Fifth Defendant or claiming the same relief in fresh proceedings against the

Fifth Defendant. Liberty to Apply The Plaintiff and the Fifth Defendant have liberty to apply, upon not less than 24 hours’ notice to each other party, by correspondence addressed to the Associate to the Honourable Justice Pike. ** Amendments 08 September 2026 - Correction to typographical error on coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 September 2026