FEDERAL COURT OF AUSTRALIA
Hodges v Waters (No 6) [2014] FCA 1343
IN THE FEDERAL COURT OF AUSTRALIA | |
DATE OF ORDER: | 8 DECEMBER 2014 |
WHERE MADE: |
THE COURT ORDERS THAT:
1. Pursuant to sections 33V and 33ZF of the Federal Court of Australia Act 1976 (Cth) (the Act), the Court approves the settlement of the proceedings against the first and second respondents (KPMG Parties) on the terms:
a. set out in the confidential Deed of Settlement executed by the Applicants, the Respondents, Wellington Capital Limited, and IMF Bentham Limited on 18 August 2014 (Deed of Settlement), being Confidential Exhibit RGJ-5 to the affidavit of Robert Guy Johnston sworn on 21 August 2014; and
b. set out in the Settlement Distribution Scheme contained in Confidential Exhibit RGJ-8 to the affidavit of Robert Guy Johnston sworn on 4 December 2014.
2. Pursuant to section 33ZF of the Act, the Group Members in the schedule annexed to these orders are:
a. deemed to have registered a claim in this proceeding and to be entitled to receive a distribution from any amount agreed in settlement of the proceeding; and
b. to be included in a Final List of Registered Group Members which is to be filed in the Court by 9 December 2014, in an envelope marked “Confidential Final List of Registered Group Members – Not to be opened without leave of the Court or a Judge” with that list to supersede the List of Registered Group Members filed with the Court on 22 October 2014.
3. Pursuant to section 33ZF of the Act, or otherwise, Robert Johnston and Robert Wyld of Johnson Winter & Slattery be appointed as Administrators of the Settlement Distribution Scheme to act in accordance with the rules of the Settlement Distribution Scheme.
4. Pursuant to section 33ZF of the Act, the amount of $23,600 to be paid from the Settlement Sum to the Applicant, Charles Hodges, in his personal capacity, by the Administrators of the Settlement Distribution Scheme, in addition to any payment to be made to Charles Hodges as trustee of the Charles Hodges Superannuation Fund in accordance with the terms of the Settlement Deed and the Settlement Distribution Scheme.
5. Pursuant to section 33ZF of the Act, or otherwise, the Court authorises the Applicants nunc pro tunc on behalf of the Group Members as defined in paragraph 12 of the Further Amended Statement of Claim filed in the proceeding and dated 24 June 2013, other than those who have opted out of the proceeding pursuant to section 33J of the Act as of 4pm on 7 May 2014 (Group Members) to enter into and give effect to the Deed of Settlement and the transactions contemplated thereby for and on behalf of those Group Members.
6. Pursuant to section 33ZB and section 33ZF of the Act, the persons affected and bound by orders 1 to 4 are the Applicants, the KPMG Parties and the Group Members.
7. Robert Johnston and Robert Wyld of Johnson Winter & Slattery have liberty to apply for directions in connection with the Settlement Distribution Scheme.
8. Until further order, on the grounds that it is necessary to prevent prejudice to the proper administration of justice, the following affidavits, exhibits and annexures and the contents therefore be ordered confidential within the meaning of regulation 2.32(1)(b) of the Federal Court Rules 2011 and their publication and disclosure be restricted within the meaning of section 37AF(1)(b)(i) of the Act in accordance with order 9 herein:
a. the documents which comprise Confidential Exhibit RGJ-8 to the affidavit of Robert Guy Johnston sworn 4 December 2014,
and not be disclosed to any person other than by order of a Judge of the Court.
9. To give effect to order 8, the affidavits, exhibits and annexures referred to in that order are to remain on the Court file in sealed envelope(s) marked “Confidential Affidavit – Not to be Opened Except by Direction of a Judge of the Court”.
10. There be no order as to costs in respect of the application under section 33V of the Act on 8 December 2014.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
SCHEDULE OF ADDITIONAL
REGISTRANTS
NAME | UNITS | |
OMITTED REGISTRANTS | ||
1 | MARGARET MARY PROUTING | 20,000 |
2 | LEONARD A COLE & ESTHER FROSTT <CLAFE SUPERANNUATION FUND A/C> | 47,919 |
3 | MISS E R VANOLINI | 4,916.00 |
4 | PROF AINSLIE GLENISTER ROSS SHEIL | 315,493.59 |
5 | MISS LEAH CLAIRE ROBERTSON | 19,566.44 |
6 | MR ROBERT JOSEPH PEREIRA | 18,392.31 |
7 | Estate of Elizabeth Davis | 209,044.14 |
635,331.48 | ||
ADDITIONAL LATE REGISTRANTS | ||
1 | R G & T M Hall ATF Hall R & T Super Fund | 5,000 |
2 | MISS REECHA GOGNA | 5,661 |
3 | MR DAVID STANDVEN EDDINGTON | 5,669 |
4 | MISS P M & MRS A HARWOOD ATF HARWOOD SUPER FUND | 10,000 |
5 | SAGIS CONSULTING PTY LTD <SAGIS SUPERANNUATION FUND A/C> | 10,000 |
6 | MS LYNETTE ALICE ORCHARD | 10,000 |
7 | JASON FEY & ROBYN JANE HARWOOD <THE ROBYN & JASON SUPER FUND A/C> | 10,000 |
8 | MS MARGARET JEAN LOUGHREY | 10,000 |
9 | MR SAMUEL ERIC MARRIOTT & MRS JEANETTE ANNE MARRIOTT | 10,310 |
10 | Michael Charles Harding | 10,353 |
11 | MR KEITH SHORLAND AND MRS MARJORIE MEREDITH SHORLAND | 10,643 |
12 | DR G FELETTI | 11,399 |
13 | ELISABETH MUNRO ATF THOMAS, GEORGIA, ADRIENNE & LEWIS MUNRO | 11,914 |
14 | WATERBRIDGE INVESTMENTS PTY LTD <THE BENNETT SUPER FUND A/C> | 12,074 |
15 | Mr Robert Charles Ferris | 13,302 |
16 | MRS JUNE LOUISE OOI | 14,598 |
17 | MR P J & MRS J O GORMLEY | 14,758 |
18 | MRS ALISON LEA TARRANT | 17,000 |
19 | MS TANIA SHERWOOD | 18,971 |
20 | WALSH ASSOCIATES PTY LTD STAFF SUPER FUND | 20,000 |
21 | MRS MARY BLOOMFIELD & MISS CATHERINE BLOOMFIELD <BLOOMFIELD M SUPERANNUATION FUND A/C> | 20,000 |
22 | F H PITMAN & CO PTY LTD <F H PITMAN & CO PTY LTD SUPERANNUATION FUND A/C> | 20,000 |
23 | MS Lynette Reeves | 20,000 |
24 | MACQUARIE UNIVERSITY SINGERS | 20,000 |
25 | MR NORMAN L YARMOUTH AND MRS BEVERLEY ANNE YARMOUTH | 22,282 |
26 | MRS LISA RENEE KNABE | 22,580 |
27 | MR DAVID ALEXANDER SALAMY & MRS LINDA MARGARET SALAMY <L & A & D SALAMY FAMILY TRUST A/C> | 23,000 |
28 | MR IVANO MELOSI <IVANO MELOSI INVESTMENTS SUPERANNUATION FUND A/C> | 23,163 |
29 | MISS MEGHA GOGNA | 23,405 |
30 | MR A W & MRS R I FOX | 25,000 |
31 | MR E D & MRS M NORTH | 25,000 |
32 | Mrs Denise Forsyth | 25,250 |
33 | MR JEFFREY CHIVELL & MRS SANDRA CHIVELL ATF CHIVELL SUPER FUND A/C | 26,807 |
34 | MRS KRISHNA GOGNA | 26,878 |
35 | MS GILLIAN THOMAS | 27,345 |
36 | MRS A FELETTI | 27,848 |
37 | MS P DRURY <THE PJD SUPERANNUATION FUND> | 28,101 |
38 | MRS REINE MARIE MARLENE LAJOIE | 30,000 |
39 | MR KENNETH ROGER WEBSTER AND MRS HELEN JOY WEBSTER | 30,080 |
40 | MR WALTER MICALLEF AND MRS ANGELA MICALLEF | 32,963 |
41 | MR HARRIE GEORGE FURNER & MRS COLEEN ANNETTE FURNER | 33,381 |
42 | MRS VICTORIA MARY MATTHEWS | 34,430 |
43 | MR RICHARD ALAN HARTZER AND MRS ANNE JOY HARTZER | 34,715 |
44 | MR GREG FLOWER & MRS MAURITA FLOWER <FLOWER FAMILY SUPERANNUATION FUND A/C> | 36,706 |
45 | MRS KAY WEEDEN | 40,000 |
46 | MRS PAULINE STRAIN | 40,000 |
47 | MR A C HANNAN | 40,300 |
48 | MR JOHN MICHAEL CAREY | 41,705 |
49 | MR CHARLES JOSEPH VASSALLO | 45,000 |
50 | MR RAYMOND ARTHUR SELKRIG & MRS ETHEL SELKRIG | 45,000 |
51 | MS SUZANNE CURRAN & MR ROBERT CATON <CURRAN CATON SUPERANNUATION FUND A/C> | 45,000 |
52 | LEIGH DARCY NEVETT & ALLISON JOANNE KAY <THE NEVETTS INTERNATIONAL SUPERANNUATION FUND A/C> | 45,075 |
53 | MR M S GODLEMAN | 49,447 |
54 | Mrs Elaine Barbara Campigli | 50,000 |
55 | MR WILLIAM MANTLE & MRS VERONICA MANTLE | 50,000 |
56 | MR IAN NEIL ARMSTRONG & MRS LYNNETTE JOY ARMSTRONG <ARMSTRONG FAMILY SUPERANNUATION FUND A/C> | 50,000 |
57 | MR GLEN IAN BARTEL & MRS JUDITH ANNE BARTEL <BARTEL SUPERANNUATION FUND A/C> | 50,000 |
58 | Estate of Estate of Shirley Mackey | 50,500 |
59 | MRS SUSAN TEISSL | 50,500 |
60 | MR NEIL ROBSON | 52,220 |
61 | G & P ROSE NOMINEES PTY LTD | 62,351 |
62 | JAMES DIXON MACKENZIE & DIANNE MARIA MACKENZIE <THE MACKENZIE FAMILY SUPER FUND A/C> | 66,000 |
63 | MR MICHAEL CHARLES SKOLNIK | 69,102 |
64 | Estate of Andrew John Kelly | 69,332 |
65 | David & Jennifer Larkin ATF LARGOONA PTY LTD | 70,700 |
66 | MRS REGINA HORNIBROOK | 72,062 |
67 | K & L JONES PTY LTD<K & L JONES PTY LTD SUPERANNUATION FUND A/C> | 80,183 |
68 | MR KEVIN LITTLE & MRS EILEEN LITTLE <LITTLE SUPERANUUATION FUND A/C> | 80,320 |
69 | MR MAXWELL WARD & MRS DORIS WARD <SWING CITY SUPERANNUATION FUND A/C> | 85,000 |
70 | MR LEWIS PETER POTTER & MRS SUSAN ANNE POTTER ATF FILO SUPERANNUATION FUND A/C | 100,000 |
71 | MR PETER MATTHEWS AND MRS SUSAN VIDA | 100,000 |
72 | THE PEGLER FAMILY SUPER FUND A/C | 100,000 |
73 | WHEELER FAMILY SUPERANNUATION FUND A/C | 110,543 |
74 | MR GERALD BROWN <TRAWALLA SUPERANNUATION FUND A/C> | 122,306 |
75 | Estate of Margaret Lindsay Williams | 136,000 |
76 | ROYNAUR INVESTMENTS PTY LTD | 150,000 |
77 | MR MICHAEL JOHN FRASER ATF TYRA SUPERANNUATION FUND A/C | 181,602 |
78 | MR MARINUS MARIA BULLE & MS ROSEMARY JEAN BULLE & MR MICHAEL JAMES BULLE <THE BULLE SUPER FUND A/C> | 201,400 |
79 | MR KENNETH MCCALLUM <THE ISLE OF MULL SUPER FUND A/C> | 209,777 |
80 | MISS SHEENA DOCHERTY | 328,172 |
81 | MR SCOTT BEUZEVILLE & MRS LINDA BEUZEVILLE <BEUZEVILLE RETIREMENT FUND A/C> | 28,331 |
82 | ESTATE OF R G BILSON | 11,705 |
83 | MS GAURI GOGNA | 14,873 |
84 | MRS ALISON MARGARET KAY | 100,000 |
85 | MR T A MURPHY | 27,504 |
86 | ESTATE OF GLADYS ELLEN HARRIS | 770,000 |
87 | MR LESLIE JOHN PEARSON & MRS JANICE PEARSON | 10,000 |
88 | ESTATE OF MRS ANNE LILLIAN DUFF | 10,000 |
89 | MR JOSEPH MAXWELL KILPATRICK | 75,000 |
90 | MRS LINDA REBECCA CHALMERS | 10,657 |
91 | MRS EDNA LORRAINE HARDER | 6,705 |
92 | MR MARK JOSEPH DUGGAN | 63,782 |
93 | MRS HELEN MARGARET DAVIES | 30,000 |
94 | P L & E KING PTY LTD <KING FAMILY SUPERANNUATION FUND A/C> | 40,000 |
95 | MR ROLAND ANGOOD & MRS PATRICIA ANNE ANGOOD <LAKE SUPERANNUATION FUND A/C> | 10,136 |
96 | MR D S RACE | 8,000 |
97 | MRS JOAN LITTLE & MR GREGORY LITTLE <ESTATE OF PERCY CURSON A/C> | 150,000 |
98 | MR BARRY FRANCIS AUSTIN AND MRS EDITH KATHLEEN MISSINGHAM-AUSTIN | 15,164 |
99 | MS MARINA CAO | 5,000 |
100 | MR GRAEME PETER MARKER | 86885 |
101 | Estate of Iris Evelyn Kabisch | 20660 |
102 | MR J CATANIA | 19536 |
103 | MRS BLANCHE TOOHEY | 75000 |
5,599,125 | ||
NEW SOUTH WALES DISTRICT REGISTRY | |
GENERAL DIVISION | NSD 324 of 2009 |
BETWEEN: | CHARLES HODGES & MARK HODGES AS TRUSTEES OF THE CHARLES HODGES SUPERANNUATION FUND Applicant
|
AND: | ANDREA JANE WATERS First Respondent KPMG Second Respondent WELLINGTON INVESTMENT MANAGEMENT LIMITED Third Respondent OCTAVIAR LIMITED (ADMINISTRATOR APPOINTED) Fourth Respondent GUY HUTCHINGS Fifth Respondent JOHN ARTHUR WHATELEY Sixth Respondent JACK SIMON DIAMOND Seventh Respondent CRAIG ROBERT WHITE Eighth Respondent DEBORAH BEALE Ninth Respondent STEVEN KRIS KYLING Tenth Respondent STUART ROBERTSON PRICE Eleventh Respondent MICHAEL GORDON HISCOCK Twelfth Respondent MICHAEL CHRISTODOULOU KING Thirteenth Respondent PAUL JOSEPH MANKA Fourteenth Respondent FERNANDO ESTEBAN Sixteenth Respondent RAYMOND KELLERMAN Seventeenth Respondent DAVID MARK ANDERSON Eighteenth Respondent OCTAVIAR LIMITED (IN LIQUIDATION) ACN 107 863 390 Nineteenth Respondent OCTAVIAR ADMINISTRATION PTY LTD (IN LIQUIDATION) ACN 101 069 390 Twentieth Respondent
|
JUDGE: | PERRAM J |
DATE: | 8 DECEMBER 2014 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
1 This is an application pursuant to section 33V of the Federal Court of Australia Act 1976 (Cth) seeking the approval of the Court to a settlement of this representative proceeding. This litigation has been before the Federal Court for over five years now and is quite old. It involves large numbers of class members and it is, to say the very least, complex. The class members include many people who are quite elderly, and indeed many have already died before a termination has been achieved of this litigation.
2 Many will be disappointed by the size of the settlement which I propose to approve in a few moments, but approve it I propose to do. Because of the significance of the reasons for my taking this action being transparent, I will publish full reasons explaining why I have approved the matter but not until early February next year. I am conscious that people will be interested to know what those reasons are. I am presently prevented from producing those reasons before that time by the volume of the Court’s current work.
I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. |
Associate:
