Younger v Westpac Banking Corporation [2016] NSWSC 1905

Younger v Westpac Banking Corporation [2016] NSWSC 1905

Because the plaintiff's own claim had been settled, the remaining group members had been notified and none had volunteered to become plaintiff, and dismissing the proceedings while they remained representative proceedings might cause injustice to group members, the course most consistent with the interests of justice was to grant leave for the plaintiff to withdraw and order under s 166(1) that the proceedings no longer continue under Part 10. The plaintiff's now non-representative proceedings were then dismissed. The defendants were ordered to pay the plaintiff's costs of the Notice of Motion filed 1 November 2016, except for costs associated with preparation for and the hearing on 9...

Jurisdiction
Australia
Judgment Date
09 December 2016
Procedural Posture
Representative Proceedings Under Part 10 of the Civil Procedure Act 2005 / Application by Plaintiff for Leave to Withdraw as Representative Party Following Settlement of His Claim; Determination Whether Proceedings Should Continue as Representative Proceedings and Costs of Notice of Motion
Outcome
Leave granted for the plaintiff to withdraw as representative party; proceedings ordered no longer to continue under Part 10; plaintiff's now non-representative proceedings dismissed; costs order made in favour of the plaintiff with an exception for costs associated with 9 December 2016.
Legal Topics
['representative Proceedings' 'withdrawal of Representative Party' 'settlement Approval' 'dismissal of Proceedings' 'costs']
['civil Procedure'] ['representative Proceedings' 'withdrawal of Representative Party' 'settlement Approval' 'dismissal of Proceedings' 'costs']

Case Brief

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Procedural Posture

Representative Proceedings Under Part 10 of the Civil Procedure Act 2005 / Application by Plaintiff for Leave to Withdraw as Representative Party Following Settlement of His Claim; Determination Whether Proceedings Should Continue as Representative Proceedings and Costs of Notice of Motion

Legal Issues

  1. 1 ['Whether the plaintiff should have leave under s 174(2) of the Civil Procedure Act 2005 to withdraw from the proceedings as a representative party after settlement of his claim.' 'Whether, no group member having volunteered to become plaintiff, the proceedings should continue under Part 10 of the Civil Procedure Act 2005 or be dismissed.' "Whether the defendants should pay the plaintiff's costs of the Notice of Motion filed 1 November 2016, including costs of the hearing on 9 December 2016."]

Ratio Decidendi

Because the plaintiff's own claim had been settled, the remaining group members had been notified and none had volunteered to become plaintiff, and dismissing the proceedings while they remained representative proceedings might cause injustice to group members, the course most consistent with the interests of justice was to grant leave for the plaintiff to withdraw and order under s 166(1) that the proceedings no longer continue under Part 10. The plaintiff's now non-representative proceedings were then dismissed. The defendants were ordered to pay the plaintiff's costs of the Notice of Motion filed 1 November 2016, except for costs associated with preparation for and the hearing on 9...

Court Disposition

Leave granted for the plaintiff to withdraw as representative party; proceedings ordered no longer to continue under Part 10; plaintiff's now non-representative proceedings dismissed; costs order made in favour of the plaintiff with an exception for costs associated with 9 December 2016.

Orders

  • ['Order pursuant to s 174(2) of the Civil Procedure Act 2005 that the plaintiff have leave to withdraw from the proceedings as a representative party.' 'Order pursuant to s 166(1) of the Civil Procedure Act 2005 that the proceedings no longer continue under Part 10 of the Civil Procedure Act 2005.' 'Note that the...