Federal Court of Australia

Kosen-Rufu Pty Ltd v Dixon Advisory and Superannuation Services Ltd [2022] FCA 573

ORDERS

THE COURT ORDERS THAT:

1.    The parties confer with a view to agreeing and submitting agreed orders to give effect to these reasons, and as to costs of the applications, within 7 days.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The parties confer with a view to agreeing and submitting agreed orders to give effect to these reasons, and as to costs of the applications, within 7 days.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THAWLEY J:

INTRODUCTION

1    Two class actions have been commenced, raising overlapping but not identical claims against overlapping but not identical respondents. Shine Lawyers acts for the applicant in the “Watson Proceeding”. Piper Alderman acts for the applicants in the “Kosen-rufu Proceeding”. The proceedings concern retail clients of the financial advisory business carried on by Dixon Advisory and Superannuation Services Ltd (DASS) who held or acquired interests in the property investment fund known as the US Masters Residential Property Fund.

2    By an interlocutory application lodged on 25 March 2022, Kosen-rufu Pty Ltd (ACN 158 119 781) and Ms Stott sought orders consolidating the two proceedings in accordance with the terms of a document styled “Co-operative Litigation Protocol”, with Shine Lawyers and Piper Alderman being jointly named as solicitors on the record.

3    By an interlocutory application also lodged on 25 March 2022, Watson & Co Superannuation Pty Ltd (ACN 601 686 828) as trustee for the Watson & Co Superannuation Fund sought orders:

(1)    staying the Kosen-rufu Proceeding; or

(2)    if no stay was to be ordered, consolidating the two proceedings.

4    Watson relied on an amended interlocutory application at the hearing. The substance of the relief sought is as just mentioned. There was only one real point of difference between Watson and Kosen-rufu in the event that the Court was minded to make an order consolidating the proceedings. The point of difference was whether the Protocol should contain clause 12, set out below. Watson takes the position that it should. Kosen-rufu contends it should not.

5    The issue concerning clause 12 of the proposed Protocol arises in the following way. The Watson Proceeding is funded by Shine Lawyers on a “no win, no fee” basis, with a 25% uplift on costs in the event of success.

6    The Kosen-rufu Proceeding is being funded by Balance Legal Capital II UK Ltd (Balance) as litigation funder. Balance originally proposed charging commission at a rate of 25% or 30%. It later revised that proposal to a rate proportionate to its funding of the costs in the consolidated proceeding: the commission would be 12.5% or 15% assuming that it funds 50% of the costs.

7    The Directors of Watson have instructed Shine Lawyers that Watson does not agree to any carriage proposal that includes payment of a funding commission to a third party funder. Opposition to paying commission to a litigation funder was also the view apparently expressed by certain other group members with whom Shine Lawyers has consulted.

8    Shine Lawyers’ position was that its funding model was likely to be in the best interests of group members when compared to the litigation funding model proposed by Piper Alderman but that, if the proceedings were to be consolidated, consolidation should only occur on the basis that group members were not exposed to an increasing risk that they might be required to contribute to funding a commission in circumstances where Shine Lawyers was prepared to act on a “no win, no fee” basis. Shine Lawyers therefore proposed that the co-operation protocol should include clause 12, which was in the following terms:

12    DISTRIBUTION OF RECOVERED SUMS

12.1     The parties agree that, in the event that sums are recovered in respect of the matters that are the subject of the Proceedings, but not as a result of a settlement or judgment in the Proceedings (for example, as a result of the external administration of a Respondent), the parties shall to the extent possible pursue a distribution of the said recoveries in similar terms to the distribution contemplated in this Section 12.

12.2     Subject to any order of the Court, the parties agree that any sums recovered from the Respondent(s) on account of costs (including but not limited to the costs of interlocutory applications) shall be applied to the said costs, and shared between PA and Shine pro rata according to the portions of the said costs incurred by each of them and approved by the Monitor.

12.3     Prior to:

a)     any application for approval of a settlement of the consolidated proceeding pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (or any corresponding or equivalent provision under any statute or rule of court applying to the consolidated proceeding in the Court, or after transfer to any other court) (together FCA Act);

b)     any application permitting the distribution of damages awarded on an aggregated basis pursuant to s 33Z(1)(f) of the FCA Act; or

c)     any other step in the proceeding, or in respect of any distribution of sums recovered in respect of the claims the subject of the proceeding, which in the opinion of the Litigation Committee makes it necessary to resolve the terms of participation of all Group Members in any distribution of sums recovered in or in connection with the consolidated proceedings;

Piper Alderman and Shine shall jointly apply to the Court for orders (including the approval of notices) requiring Group Members who have not at that time executed the funding agreement relating to the Kosen-rufu Proceeding or Piper Alderman's role in the consolidated proceedings, or the retainer offered by Shine (non-client Group Members) to nominate whether they wish to participate as Group Members in the distribution of any recoveries from the said proceedings on the terms offered by Piper Alderman (PAGMs) or the terms offered by Shine (Shine GMs).

12.4     Subject to any order of the Court, the parties agree that in the event that any sums not referred to in 12.4 and recovered from the Respondent(s) in or in connection with the consolidated proceeding or the claims the subject of the consolidated proceeding (compensation) become payable pursuant to a settlement of or judgment in the consolidated proceeding:

a)     the compensation shall be applied first to reimbursement of 100% of such disbursements as may have been approved by the Court, or if Court approval is not required then approved by the Monitor (and approved shall be construed accordingly), and if the available funds are insufficient then the compensation shall be reimbursed to PA and Shine pro rata in proportion to their approved disbursements;

b)     the compensation shall be applied second to payment of the approved legal costs (excluding uplift and commission) of PA and Shine, and if the available funds are insufficient then the compensation shall be reimbursed to PA and Shine pro rata in proportion to their approved costs (excluding uplift and commission); and

c)     third:

i)     the compensation payable to PAGMs shall be applied to payment of funder's remuneration (commission) payable to Balance (and for the avoidance of doubt, the value of such commission shall be calculated only by reference to the compensation payable to PAGMs);

ii)     the compensation payable to Shine GMs shall be applied to payment of any approved unrecovered costs (including uplift) of Shine (and for the avoidance of doubt, the value of such uplift shall be calculated only by reference to the costs incurred by Shine).

12.5     Piper Alderman and Shine agree that although each of them:

a)     shall maintain their website pages inviting and enabling Group Members to become client Group Members of that firm; and

b)     may respond to enquiries from Group Members by inviting Group Members to become client Group Members of that firm;

neither firm shall initiate the recruitment of Group Members as client Group Members (for convenience, bookbuild) other than as contemplated by 12.3.

9    The inclusion of cl 12 in the co-operation protocol was opposed by Kosen-rufu, whose position was that these issues should be dealt with upon the settlement or determination of the consolidated proceeding.

THE PRINCIPLES

10    There was no dispute between the parties as to the relevant principles. The Court must determine, by reference to all relevant considerations, what would be in the best interests of group members. If the choice is between staying one proceeding and allowing the other to proceed, the question is which proceeding going ahead would be in the best interests of group members: Wigmans v AMP Ltd [2021] HCA 7; 388 ALR 272; at [109]. In the present case where Kosen-rufu does not seek for the Watson Proceeding to be stayed, the question is whether consolidating the proceedings or staying the Kosen-rufu proceedings would be in the best interests of group members.

11    The factors that might be relevant cannot be exhaustively stated and can be expected to vary from case to case. In CJMcG Pty Ltd as Trustee for the CJMcG Superannuation Fund v Boral Limited (No 2) [2021] FCA 350; 389 ALR 699; at [13], Lee J noted that the factors considered in other cases include:

(1)    the competing funding proposals and net hypothetical return to group members;

(2)    the proposals for security for costs;

(3)    the size of the respective classes;

(4)    the nature and scope of the causes of action advanced (and relevant case theories);

(5)    the experience of the legal practitioners (and funders) and availability of resources;

(6)    the state of progress of the proceedings;

(7)    the extent of any bookbuild; and

(8)    the conduct of the representative applicant to date.

12    The parties addressed these factors to the extent relevant and raised various additional matters peculiar to the particular circumstances which have arisen.

CONSIDERATION

Funding proposals

13    It was submitted for Watson that, in virtually any realistic scenario, the Shine Lawyers funding structure would involve lower costs for group members. It was submitted to be more likely that Shine’s 25% uplift on costs is likely to be lower than Balance’s 12.5% to 15% commission on damages. It was submitted that, in the circumstances of this case, the return to group members and potential group members ought to be the main determinative factor.

14    It was submitted for Kosen-rufu that it was not possible to assess the financial impact of the two competing funding models. Two matters were relied upon. First, it was submitted that there was significant uncertainty about recoverability which makes it difficult to perform any analysis on the possible returns to the group members. The second matter was expressed in the following way:

The possibility of Balance receiving a funding commission from unregistered group members on settlement through a common fund order cannot tip the scales because it is just that – a possibility. The Court cannot assess whether, and to what extent, it would be appropriate for Balance to receive such an order until the terms of any settlement or judgment is known. The Full Court has warned against engaging in such hypothetical analysis: Davaria Pty Limited v 7-Eleven Stores Pty Ltd [2020] FCAFC 183 at [71].

15    I will address the second matter first. Reliance on Davaria is misplaced. That case concerned the question whether the Court should answer a question, in advance of relevant events occurring, about whether it had power to make a common fund order upon settlement or determination of the proceeding. The Court ultimately held that it should not answer that question. The observations of Lee J at [71] were not directed to the question of whether a Court in determining a “carriage application” should seek to determine as best it could which of two or more funding models was likely to better serve the interests of group members. Less still was his Honour sounding a caution against engaging in such an exercise. His Honour’s observations at [71] are directed to a different point. His Honour was referring to the fact that, statute aside (s 33ZF and 33V of the Federal Court of Australia Act 1976 (Cth) (FCA Act)), there might be circumstances in which a court of equity would make orders to distribute the burden of a proper and legitimate funding cost at the end of a proceeding – see: Davaria at [29], [30], [40]; see also: Lenthall v Westpac Banking Corporation (No 2) [2020] FCA 423 at [10]. His Honour was making the point in Davaria at [71] that it was inappropriate to declare in advance of the relevant events occurring that there was no possible basis on which an order, equivalent to some form of a common fund order, would not be made in the Court’s equitable jurisdiction.

16    It is probable that, if the proceedings were consolidated, some form of order would ultimately be made to recognise Balance’s funding of part of the cost of the consolidated proceeding. It is true that it is not presently possible to state precisely what sort of order would be made. It is equally true, however, that it is unlikely that a Court would countenance a situation in which group members could take the benefit of funding without some form or monetary recognition.

17    As to Kosen-rufu’s first submission, it may be accepted that there are uncertainties concerning amounts which might be recovered. Nevertheless, insurers have confirmed that indemnity has been granted in relation to the Kosen-rufu representative class action to DASS, E&P and the directors pursuant to an identified insurance policy. Given the similarities between the two proceedings and the fact that they arise from the same events, it is likely that indemnity has been or would be granted in relation to the Watson representative class action.

18    There is nothing in the evidence to suggest that substantial recovery via insurance is unlikely.

19    I am satisfied that the funding model proposed by Shine Lawyers is, on balance, more likely to result in a greater recovery to group members and that its funding model is in the best interests of those members. In its submissions in support of its application to this Court under s 1317QF of the Corporations Act 2001 (Cth), to which I will later refer, Kosen-rufu estimated that the possible claims totalled between $278m and $463m. Assuming the claims are wholly or partly made out (or that the insurers perceive substantial risk sufficient to warrant settlement), there is nothing to suggest that substantial recovery is unlikely. If the costs of the proceeding are $4 million, a 25% uplift on costs would be $1 million. Assuming a commission of 12.5%, recovery of damages would need to be less than $8 million for group members to be better off under the Kosen-rufu model. Accepting that the task is uncertain given it is a prediction as to future events, the probabilities favour that group members will be better off under the Shine Lawyers funding structure, because Shine Lawyers’ 25% uplift on costs is likely to be lower than Balance’s 12.5% to 15% commission on damages.

20    It was submitted for Kosen-rufu that there was a substantial difference in the fees which would be charged by Shine Lawyers (higher) than by Piper Alderman (lower). This was said to make the analysis just undertaken inappropriate. This submission was based on the different charge out rates of the lawyers and paralegals involved. Shine Lawyers rates were as follows:

21    Piper Alderman’s rates were as follows:

22    The difficulty with Kosen-rufu’s submission is that, like anyone, lawyers work at different speeds and with different degrees of efficiency. I would not conclude from the difference in charge out rates that it is likely that the total fees (before uplift) which would be charged by Shine Lawyers would be substantially greater than the total which would be charged by Piper Alderman. I think it more likely that the total fees would be approximately the same.

Security for costs

23    Security for costs considerations are neutral. I am satisfied that Shine Lawyers has sufficient financial resources to provide adequate security for costs if ordered, and meet any adverse costs order that might be made in the proceeding. I note also that Shine Lawyers intends to procure “after the event” (ATE) insurance from an A-rated insurer. Shine Lawyers has not yet incurred the expense of negotiating and procuring that policy. The solicitor for Watson, Ms Janice Saddler, provided evidence which I accept that Shine Lawyers did not anticipate encountering any difficulties obtaining such insurance.

Bookbuild – number of registrants/clients

24    There was no dispute that the class would comprise approximately 4,800 potential members.

25    Piper Alderman has 60 members signed up (or close to signing up) to the scheme, and a further 145 group members have registered interest. This has been achieved without advertising or promotion.

26    Shine Lawyers has significantly more group members who have registered interest. Ms Saddler estimates that 35% of the potential class have registered interest with Shine Lawyers – some 1355 persons. The securing of this interest followed media and online advertising.

Scope of claims

27    Both proceedings are “open” class. The Watson Proceeding covers a “Relevant Period” of 15 April 2011 to 23 December 2021. The Kosen-rufu Proceeding covers a “Relevant Period” of 18 July 2012 to 1 November 2021. It is likely that the Watson class therefore covers some persons who, by reason of the time “period”, might not be covered by the Kosen-rufu Proceeding class. This is not a matter on which I place significant weight.

28    Both proceedings have been issued against the same respondents, except that Mr Christopher Brown is a respondent only to the Watson Proceeding. Both proceedings advance claims against the respondents for contraventions of the Corporations Act, the Australian Securities and Investments Commission Act 2001 (Cth) and the Australian Consumer Law, located in Schedule 2 of the Competition and Consumer Act 2010 (Cth). Both proceedings arise from the same factual substratum. Unlike the Kosen-rufu Proceeding, the Watson Proceeding also alleges breach of contract/retainer between clients and DASS; a failure by DASS to provide appropriate advice; a failure by the respondents to give priority to the clients’ interests; and negligence. The Watson Proceeding pleads fully a case theory regarding causation. In light of the fact that both proceedings are at an early stage, this is not a matter on which I place significant weight.

Experience of lawyers and availability of resources

29    This factor is neutral. The individuals in both teams are likely to conduct the litigation appropriately and well.

30    Piper Alderman emphasised its expertise in insolvency. It was said that this would assist in the resolution of complex issues due to the recent insolvency of DASS and its suggested intention to use a deed of company arrangement to resolve the proceedings. That may be so, but it is difficult to think that such complex questions as might arise will not be appropriately addressed by Shine Lawyers and counsel retained by them.

Commencement, stage and conduct of proceedings

31    The two proceedings were commenced less than two months apart – the Kosen-rufu Proceeding on 1 November 2021 and the Watson Proceeding on 22 December 2021. Shine Lawyers had been investigating the claim since about June 2019. It notified Piper Alderman and the Court that there would be a competing claim on 24 November 2021.

32    The “order of filing” is not a persuasive consideration in this case, even if it is of some relevance – see: Wigmans at [107].

33    Since filing, neither proceeding has progressed ahead of the other in any way that is now material. Both have delivered pleadings, both have had correspondence with the respondents regarding preliminary discovery and security for costs, and both solicitors have participated in the Committee of Inspection for DASS, it now being in voluntary administration.

34    There is no material difference between the conduct of the representative applicants to date. Both Shine Lawyers and Piper Alderman formulated consolidation proposals and engaged in meaningful negotiations.

35    Kosen-rufu submitted that an experienced (and well resourced) funder involved in a consolidated proceeding provides additional security to group members. If, for example, Shine Lawyers were to determine that a “no win, no fee” model was no longer financially viable, group members would be adversely affected. It was submitted that this extra security is a factor which should be attributed extra weight in the context of the perilous financial position of DASS. I do not give this factor significant weight. There is no real reason to think that a “no win, no fee” model would cease to be financially viable.

36    Kosen-rufu also relied on its endeavours to obtain copies of the relevant insurance policy. I do not give this matter significant weight given the low likelihood of the insurance policy being obtained in the manner envisaged. Shine Lawyers’ failure to join in seeking the insurance policy in the way envisaged by Piper Alderman is not significant in these circumstances.

Kosen-rufu’s application under s 1317QF

37    Kosen-rufu emphasised the steps which it took to have an amount of $8.2 million paid into Court by DASS. Kosen-rufu, as intervener in proceedings between the Australian Securities and Investment Commission and DASS, sought an order under s 1317QF of the Corporations Act for an agreed penalty to be paid into Court until such time as its class action was resolved by settlement or judgment. The question of whether the amount should be paid to the group members or to the Commonwealth could then be determined having regard to the resolution of the proceedings and the net assets which were available. In the result, however, DASS entered voluntary administration on 19 January 2022 with the result that the s 1317QF application is unlikely to be determined.

38    The taking of these steps may ultimately be of some benefit to group members in the sense that, without them, the penalty would have been paid to the Commonwealth. Nevertheless, the more likely source of satisfaction will be insurance such that the benefit of the s 1317QF application may be overstated.

39    It is also relevant to take into account that Kosen-rufu took the steps that it did, which might be seen to be indicative of it taking pro-active steps to advance the interests of group members.

Benefits provided by the Managed Investment Scheme

40    Kosen-rufu submitted that, if the Kosen-rufu proceedings are stayed and the Managed Investment Scheme is unwound then none of the protections provided by that structure would be available to group members. Those protections were said to include:

(1)    the involvement of two AFSL holders (Balance Legal Capital LLP and the Scheme’s Responsible Entity), whose compliance with the licence conditions is proactively supervised by ASIC, and who are both required to hold adequate Professional Indemnity insurance, hold adequate financial resources (including minimum net tangible assets), and be members of the Australian Financial Complaints Authority;

(2)    that a Responsible Entity oversees the administration of the Scheme and, by extension, group members receive the benefit of being able to recover loss or damage from a Responsible Entity under s 601MA of the Corporations Act if any loss or damage is suffered because of the conduct of the scheme’s Responsible Entity; and

(3)    that the Responsible Entity is obliged to maintain and comply with a Compliance Plan in accordance with s 601HA of the Corporations Act, setting out the measures which the Responsible Entity is to undertake in operating the scheme to ensure compliance with the constitution and the Corporations Act.

41    I do not see these matters as providing significant additional benefit to group members over what is proposed by Shine Lawyers. It is not clear how any of these so-called protections provide any meaningful benefit to the group members when compared to the circumstances which would prevail under the Shine Lawyers’ structure.

Supervision by litigation funder

42    Kosen-rufu submitted that supervision by a litigation funder can lead to better overall supervision of cost and ensures that the proceedings are conducted expeditiously. Kosen-rufu also submitted that the costs referee proposed as part of the consolidation application would also lead to better supervision of cost. Kosen-rufu observed that there was no evidence that Shine Lawyers would adopt a costs referee to scrutinise its costs at regular intervals. It was submitted that Balance has a strong incentive to manage the proceedings efficiently.

43    I do not regard any of these matters as particularly persuasive. Whichever funding structure is adopted, the lawyers engaged in the proceedings have obligations to conduct the proceedings consistently with the overarching purpose in s 37M of the FCA Act. There is no reason to think that supervision by a litigation funder or costs referee is likely to result in some decrease in cost or delay or otherwise to improve the likelihood of the lawyers acting in the case consistently with their ethical and statutory obligations.

The consolidation issue

44    As mentioned above, Shine Lawyers proposed a co-operation protocol that contemplated consolidation of proceedings and a bifurcated costs arrangement that quarantined to Piper Alderman’s signed-up group members any obligation to contribute to a funder’s commission. This proposal was rejected. Piper Alderman’s position is that any co-operation protocol must require all the group members to contribute to Balance’s commission.

45    Proceeding in the way advocated by Piper Alderman is likely to add undesirable complexity and is likely to result in some additional cost and delay. That is so even though the proposed structure would involve the appointment of an independent and qualified costs consultant to supervise whether there has been duplication of work and to make recommendations where there has been such duplication. More importantly however, in the present circumstances, I consider it is in the better interests of group members as a whole for a class action to proceed under a “no win, no fee” model given the likelihood of that resulting in a better return. I do not consider it is in the best interests of group members for the proceedings to be consolidated on a basis which would give rise to the potential for the group members to be required to contribute to funding a commission in circumstances where Shine Lawyers is content to conduct the Watson Proceedings on a “no win, no fee” basis.

46    If I were to have concluded that a consolidated proceeding was in the best interests of group members as a whole, I would have required the co-operation protocol to include cl 12 as proposed by Shine Lawyers. The interests of group members as a whole would be better served in the circumstances by there not being a risk that, at some later time, those members might be required to contribute to Balance’s commission when Shine Lawyers is prepared to conduct the proceedings on a “no win/no fee” basis.

47    I consider it preferable to stay the Kosen-rufu Proceeding pending the determination or settlement of the Watson Proceeding rather than consolidate the two proceedings with a co-operation protocol that includes cl 12. The reasons for this are:

(1)    First, and most significantly, the Shine Lawyers’ structure is more likely to result in a better return to all group members. The “no win, no fee” model is, on balance, likely to be less expensive than the payment of a commission on damages. This consideration is sufficient of itself.

(2)    Secondly, but less significantly, if the proceedings were consolidated and the co-operation protocol included cl 12, then the probabilities favour that most group members who had not executed the funding agreement relating to the Kosen-rufu proceeding or the retainer offered by Shine Lawyers would be likely to nominate participating as group members in the distribution of recoveries on the terms offered by Shine Lawyers – see cl 12.3. This is because those terms are more likely to, and to be perceived as likely to, result in higher recovery by group members.

(3)    Thirdly, the complexity and additional cost and delay which is likely to result from a consolidated proceeding is not outweighed by the uncertain benefit in a consolidated proceeding which allows for a nomination as contemplated by cl 12.3 in circumstances where it is more likely than not that the majority of uncommitted group members are likely to nominate as group members in the distribution of recoveries on the terms offered by Shine Lawyers.

CONCLUSION

48    Taking all the matters referred to above into account, the appropriate course is to stay the Kosen-rufu Proceedings until after an initial trial of common issues or any settlement if that were to occur before the determination of common issues in the Watson Proceedings. I would also reserve liberty to Kosen-rufu to apply in the Watson Proceedings in relation to any Court ordered mediation. The parties should confer with a view to submitting agreed orders in the two proceedings within 7 days.

Associate:

Dated:    18 May 2022

SCHEDULE OF PARTIES