Foley v Gay [2016] FCA 273

Foley v Gay [2016] FCA 273

The settlement was approved because, having regard to the litigation risks, the proportion of the settlement sum to the estimated best recovery, the absence of objection by group members, the equal access of group members to review and objection procedures, and the appropriateness of the loss assessment formula, the settlement was fair and reasonable both inter partes and as between group members inter se. The claimed costs, administration costs and reimbursement payment were reasonable and proportionate, and confidentiality orders were appropriate to protect confidential, privileged and commercially sensitive material.

Jurisdiction
Australia
Judgment Date
21 March 2016
Procedural Posture
Representative Proceeding / Application for Court Approval of Settlement Under S 33 V of the Federal Court of Australia Act 1976 (cth)
Outcome
Settlement approved and orders made in the terms sought.
Legal Topics
['approval of Settlement' 'settlement Distribution Scheme' 'continuous Disclosure' 'misleading or Deceptive Conduct' 'legal Costs and Administration Costs' 'non Publication and Confidentiality Orders']
['commercial and Corporations' 'corporations and Corporate Insolvency' 'representative Proceedings'] ['approval of Settlement' 'settlement Distribution Scheme' 'continuous Disclosure' 'misleading or Deceptive Conduct' 'legal Costs and Administration Costs' 'non Publication and Confidentiality Orders']

Case Brief

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Procedural Posture

Representative Proceeding / Application 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 settlement was fair and reasonable as between the applicant and respondents.' 'Whether the proposed settlement and loss assessment formula were fair as between group members inter se.' "Whether the applicant's legal costs and administration costs should be approved for payment from the settlement sum." 'Whether an Applicant Reimbursement Payment of $18,200 should be approved.' 'Whether confidentiality and non-publication orders should be made for confidential settlement and assessment materials.']

Ratio Decidendi

The settlement was approved because, having regard to the litigation risks, the proportion of the settlement sum to the estimated best recovery, the absence of objection by group members, the equal access of group members to review and objection procedures, and the appropriateness of the loss assessment formula, the settlement was fair and reasonable both inter partes and as between group members inter se. The claimed costs, administration costs and reimbursement payment were reasonable and proportionate, and confidentiality orders were appropriate to protect confidential, privileged and commercially sensitive material.

Court Disposition

Settlement approved and orders made in the terms sought.

Orders

  • ['Pursuant to sections 33V and 33ZF of the Federal Court of Australia Act 1976 (Cth), the settlement of the proceeding between the applicant and the respondents was approved on the terms set out in the confidential Deed of Settlement and the Settlement Distribution Scheme and Confidential Annexure B Loss Assessment...