Cantor v Audi Australia Pty Limited (No 5) [2020] FCA 637

Cantor v Audi Australia Pty Limited (No 5) [2020] FCA 637

The approved settlement, reflecting comprehensive releases, compensation payments to group members, payment of applicants' legal costs by respondents, and an equitable distribution methodology, was fair and reasonable considering complexity, duration, litigation risks, and overall benefit to group members. The Court declined to make the sought common fund and funding equalisation orders as it lacked power under s 33V(2) and found no discretionary justification, especially where group members already benefited from unfunded open-class actions, and the proposed orders would have disproportionately advantaged the litigation funder. Funding of lead applicants and settlement administration...

Parties
Applicant: Richard Cantor; Respondent: Audi Australia Pty Limited; Applicant: Josefina Tolentino; Respondent: Volkswagen Group Australia Pty Limited; Applicant: Alister Dalton; Applicant: Joanna Dalton; Respondent: Volkswagen AG; Applicant: Robyn Tanya Richardson; Respondent: Audi AG; Applicant: Steven Roe; Respondent: Skoda Auto a.s.; Additional Respondent: Grosvenor Litigation Services Pty Ltd
Jurisdiction
Australia
Judgment Date
01 April 2020
Procedural Posture
Class Action / Representative Proceedings / Settlement Approval and Associated Funding Applications (final Orders)
Outcome
Settlement approved; class actions dismissed with effect upon completion of settlement administration; no order as to costs; all previous costs orders vacated; all applications for common fund or funding equalisation orders dismissed; confidentiality orders made over specified settlement evidence and confidential data.
Legal Topics
Approval of Settlement Under S 33 V, Common Fund Orders, Funding Equalisation Orders, Defeat Device / Emissions Standards, Australian Consumer Law, Trade Practices, Automotive Regulatory Compliance
Consumer Law Commercial Law Class Actions Product Liability Approval of Settlement Under S 33 V Common Fund Orders Funding Equalisation Orders Defeat Device / Emissions Standards +3 more

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Parties

Richard Cantor

Applicant

Audi Australia Pty Limited

Respondent

Josefina Tolentino

Applicant

Volkswagen Group Australia Pty Limited

Respondent

Alister Dalton

Applicant

Joanna Dalton

Applicant

Volkswagen AG

Respondent

Robyn Tanya Richardson

Applicant

Audi AG

Respondent

Steven Roe

Applicant

Skoda Auto a.s.

Respondent

Grosvenor Litigation Services Pty Ltd

Additional Respondent

Procedural Posture

Class Action / Representative Proceedings / Settlement Approval and Associated Funding Applications (final Orders)

Legal Issues

  1. 1 Whether the Court should approve settlement of five class actions under Pt IVA of the Federal Court of Australia Act 1976 (Cth) for claims arising from the installation of illegal emissions software (defeat devices) in motor vehicles
  2. 2 Whether the Court should make a common fund order or, alternatively, a funding equalisation order regarding commission payments and project management fees due to the litigation funder
  3. 3 Whether the terms of the settlement and its distribution methodology are fair and reasonable to all class members under s 33V

Ratio Decidendi

The approved settlement, reflecting comprehensive releases, compensation payments to group members, payment of applicants' legal costs by respondents, and an equitable distribution methodology, was fair and reasonable considering complexity, duration, litigation risks, and overall benefit to group members. The Court declined to make the sought common fund and funding equalisation orders as it lacked power under s 33V(2) and found no discretionary justification, especially where group members already benefited from unfunded open-class actions, and the proposed orders would have disproportionately advantaged the litigation funder. Funding of lead applicants and settlement administration...

Court Disposition

Settlement approved; class actions dismissed with effect upon completion of settlement administration; no order as to costs; all previous costs orders vacated; all applications for common fund or funding equalisation orders dismissed; confidentiality orders made over specified settlement evidence and confidential data.

Orders

  • Approval of settlement of five class actions under s 33V upon terms of Settlement Deed, Settlement Scheme, and Settlement Payment Methodology.
  • Applicants authorized to enter into the Settlement Deed on behalf of all group members not opted out.