Federal Court of Australia

B3S2 Pty Ltd as Trustee for the B & S D'Avoine Enduring Family Superannuation Fund v Australian Public Custodian Limited (in liq) (No 2) [2025] FCA 719

ORDERS

THE COURT ORDERS THAT:

Court approval of Settlement

1.    Pursuant to section 33V of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the Court approves:

(a)    the settlement of the proceeding on the terms set out in the deed of settlement dated 13 May 2025 (Deed of Settlement), being Confidential Exhibit A to the affidavit of Joanne Louise Hardwick sworn 20 May 2025 (First Hardwick Affidavit); and

(b)    the settlement distribution scheme (Settlement Distribution Scheme) as set out in Confidential Exhibit C to the First Hardwick Affidavit and as amended in Confidential Exhibit JLH-1 to the further affidavit of Joanne Louise Hardwick sworn 17 June 2025 (Second Hardwick Affidavit).

2.    Pursuant to section 33ZB of the FCA Act, the persons affected and bound by the settlement of the proceeding are the Applicant, the Second to Fourth Respondents, and the Group Members.

Confidentiality orders

3.    Pursuant to section 37AG(1)(a) of the FCA Act, the following documents exhibited to the Second Hardwick Affidavit and the affidavit sworn by Thomas John Rowe on 17 June 2025 (Rowe Affidavit) be treated as confidential and be sealed on the Court file in an envelope marked "Not to be opened except by leave of the Court or a Judge", and they shall not be published or made available until further order on the grounds that the order is necessary to prevent prejudice to the proper administration of justice:

(a)    Confidential exhibit JLH-1 to the Second Hardwick Affidavit, being the amended Settlement Distribution Scheme;

(b)    Confidential Exhibit A to the Rowe Affidavit, being an unredacted list of Group Members with contact details shown;

(c)    Confidential Exhibit B to the Rowe Affidavit, being a copy of all emails and documents received from Group Members; and

(d)    the Applicant’s outline of submissions in support dated 18 June 2025.

Other orders

4.    The Applicant, Bruno D'Avoine, Shirley D'Avoine and Skye D'Avoine are released from the undertakings that they provided to the Court pursuant to Orders made in the proceeding on 26 October 2023.

5.    The Applicant is to notify the Court of the completion of the steps set out in the Settlement Distribution Scheme, with such notice to be given with 5 business days of completion.

6.    Seven days after the Applicant giving notice in accordance with Order 5 above, the proceeding is to be dismissed with no order as to costs.

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

REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

INTRODUCTION

1    This is the second return of an application for settlement approval brought pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (FCA Act). At the first return, I made orders for the provision of the Notice of Settlement to group members informing them of the proposed settlement, and for the process for group members to notify the Court of any opposition to the proposed settlement, as well as confidentiality orders in respect of exhibits to affidavit material: B3S2 Pty Ltd as Trustee for the B & S D’Avoine Enduring Family Superannuation Fund v Australian Public Custodian Limited (in liq) [2025] FCA 573 (first judgment).

2    Having complied with the orders for distribution of notices, the applicant now seeks orders for the approval of the settlement of this proceeding on the terms of the Deed of Settlement dated 13 May 2025 which is found at Confidential Exhibit A to the affidavit of Joanne Louise Hardwick sworn on 20 May 2025 (First Hardwick Affidavit), and for approval of the proposed Settlement Distribution Scheme as set out in Confidential Exhibit C to the First Hardwick Affidavit and as amended in Confidential Exhibit JLH-1 to the further affidavit of Joanne Louise Hardwick sworn on 17 June 2025 (Second Hardwick Affidavit), such settlement to bind the applicant, the second to fourth respondents, and the group members.

3    Further, the applicant seeks confidentiality orders pursuant to s 37AG(1) of the FCA Act in relation to its outline of submissions and certain confidential exhibits to its further affidavit material prepared in respect of this hearing.

4    In support of its application, the applicant relies on the First and Second Hardwick Affidavits, the affidavit of Bruno D’Avoine sworn on 22 May 2025 (D’Avoine Affidavit), and the affidavit of Thomas John Rowe sworn on 17 June 2025 (Rowe Affidavit).

5    These are my reasons for making the orders sought at the hearing on 19 June 2025.

BACKGROUND

Overview of the proceeding

6    The substantive proceeding was commenced on 20 April 2023. It is brought on behalf of the applicant and other group members who acquired Class B units in the Future Estate Development Opportunity Fund (ARSN 164 525 973) (FEDO Fund) pursuant to an Offer made by the first respondent (APC) as the responsible entity of the FEDO Fund by a product disclosure statement dated 10 November 2014 (PDS) and, as part of the Offer, entered into a contract with the fourth respondent (Parc Vue Project) to purchase an apartment in a development at 1091 Plenty Road, Bundoora, Victoria (Bundoora Development). In total, 28 investors acquired Class B units under the Offer in exchange for total payments of $3,435,000.

7    The FEDO Fund was a registered managed investment scheme pursuant to Chapter 5C of the Corporations Act 2001 (Cth), offering investment opportunities in medium and large-scale residential property developments including the Bundoora Development. The second respondent, Mr Anderson, was a director of APC and of Parc Vue Project. The third respondent, Mr Toole, was also a director of APC as well as its compliance officer.

8    The applicant alleges that the PDS contained representations that the funds raised under the Offer would be used to purchase the land for, and fund the construction of, the Bundoora Development and would not be used for any other purpose unrelated to the Bundoora Development, and representations about forecast returns on investment following Stage 1 of the Bundoora Development.

9    The applicant further alleges that between about 28 November 2014 and June 2015, APC in its capacity as responsible entity of the FEDO Fund made loans of $75,000 and $1.2 million to a company controlled by Mr Anderson. The loans were advanced for property developments in Queensland that were not related to the Bundoora Development. The loan facilities were not disclosed in either the PDS or a supplementary disclosure statement issued in respect of the Offer.

10    In those circumstances, the applicant alleges that APC’s representations in the PDS relating to the use of investor funds and forecast returns were misleading and deceptive, and that the PDS was defective within the meaning of s 1022A(1)(a) and (b) of the Corporations Act. It also alleges that APC breached the duties of a responsible entity of a managed investment scheme under s 601FC of the Corporations Act, and that Mr Anderson and Mr Toole were involved in those breaches and in the preparation of the defective PDS. In respect of those claims, the applicant seeks orders for compensation or damages under s 1022B(2)(c) and (3)(b) of the Corporations Act.

11    The applicant also makes claims against Parc Vue Project, including that it owed a duty of care to the investors who had purchased Class B units to ensure that their money was used solely in accordance with the PDS, and to ensure that the Bundoora Development proceeded in a timely and cost-effective manner. The applicant alleges that, given the funds invested by group members were diverted to other property developments as described above, Parc Vue Project breached those duties.

12    The group members’ loss and damage resultant upon those alleged breaches is claimed on different bases, including restoring the FEDO Fund to the position it would have been in had money not been diverted to the related developments (initially particularised to be $1,275,000), or loss assessed on a “no transaction basis” (i.e. that had the applicant known of the misleading statements in the PDS, it would not have invested in the Bundoora Development at all). It was estimated that the latter basis could yield damages as high as $8,687,000.

13    The opt-out period for this proceeding expired on 10 May 2024. No investor opted out. The group therefore is a relatively confined group comprising all 28 investors who purchased Class B units in the FEDO Fund.

14    Court-ordered mediation took place on 12 November 2024. While the proceeding did not resolve at the initial mediation, the mediator, Mr Paul Santamaria KC of the Victorian Bar, subsequently continued with informal negotiations between the parties over several weeks. Those negotiations ultimately led to an offer being tabled by the respondents on 20 December 2024, which was agreed to by the applicant. The parties then negotiated the terms of a Deed of Settlement, which was executed on 13 May 2025 and which appears at Confidential Exhibit A to the First Hardwick Affidavit.

Overview of the proposed settlement

15    In short, the settlement would see the second to fourth respondents pay the applicant and other group members a total sum of $1,300,000 (inclusive of costs and interest) (Settlement Sum) to compromise the claims in the proceeding without any admission of liability. The applicant and group members will, in exchange, give releases and covenants not to sue in respect of the subject matter of the proceeding.

16    The settlement is subject to two conditions precedent (First Hardwick Affidavit at [9]):

(a)    that the Liquidator of APC either consents to or does not oppose or object to the settlement (which has occurred in circumstances where APC did not oppose this application); and

(b)    the applicant’s obtaining Court approval under ss 33V or 33ZF of the FCA Act, together with orders that the proceeding be dismissed with no order as to costs.

17    Upon drawing counsel’s attention on the first return date to the Full Court decision in Dyczynski v Gibson [2020] FCAFC 120; 280 FCR 583 at [251]-[252], the order ultimately sought in this respect was pursuant to s 33ZB. As the Full Court observed at [251]:

The authority of a representative applicant to represent class members’ interests is conferred by Part IVA, and the applicant and class members are only privies in interest with respect to and to the extent of those common claims which are the subject of the proceeding. The applicant represents the class members only to the extent of the common claims: Timbercorp at [39], [49], [53]-[54], [122] and [141]-[142]. In the absence of express statutory words we would not conclude that Parliament intended that, absent authorisation by class members, the applicant has authority to settle the individual or idiosyncratic claims of class members.

18    The Full Court expressly approved (at [247]) the observations of Lee J in Clark v National Australia Bank Limited (No 2) [2020] FCA 652 where his Honour said, at [24]:

… non-party claims are “settled” not through the operation of common law principles upon dismissal of a proceeding, but through the operation of statute. The reason why the group members although non-parties are bound to the s 33V settlement order is by the making of a s 33ZB order, which means the settlement order binds group members who did not opt out.

19    In this respect, the practice in the Federal Court appears to differ from that in the Victorian Supreme Court, as to which see Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd [2017] VSCA 51; 118 ACSR 592 at [56]-[58].

20    In addition to the orders required to satisfy the second condition precedent, the applicant and group members also seek approval of the Settlement Distribution Scheme.

21    It is appropriate to record at this stage that, whilst not determinative of the outcome of the application, none of the group members has objected to the proposed settlement, nor to the Settlement Distribution Scheme. To the extent that any view has been expressed, the evidence discloses that some group members have made clear their strong support for the proposed settlement.

RELEVANT PRINCIPLES

22    The principles informing whether or not a settlement of a representative proceeding should be approved pursuant to s 33V of the FCA Act are well-established and have been identified in a number of cases, including Australian Securities and Investments Commission v Richards [2013] FCAFC 89 at [7]-[8]; Kelly v Willmott Forests Ltd (in liq) (No 4) [2016] FCA 323; 335 ALR 439 at [62]-[77] per Murphy J; Blairgowrie Trading Ltd v Allco Finance Group Ltd (Receivers & Managers Appointed) (in liq) (No 3) [2017] FCA 330; 343 ALR 476 at [81]-[85] per Beach J; and Caason Investments Pty Ltd v Cao (No 2) [2018] FCA 527 at [12]-[13] per Murphy J.

23    It is uncontroversial that the key task of the Court is to assess whether the proposed settlement is “fair and reasonable having regard to the interests of the class members who will be bound by it”: Andrews v Australia and New Zealand Banking Group Limited [2019] FCA 2216 at [17] per Middleton J (Andrews v ANZ).

24    I gratefully adopt the summary of the relevant principles set out by Beach J in Blairgowrie Trading, who said:

[82]     First, there is no single way in which a settlement should be framed, either as between the applicant/group members and the respondents (inter partes) or in relation to sharing the compensation as between group members (intra-group). Reasonableness is a range. The question is whether the proposed settlement and scheme fall within that range.

[83]     Second, the Court’s role is not to second-guess the strategic decisions made by the applicant’s legal representatives, but rather to satisfy itself that the decisions are within the reasonable range of potential decisions, having regard to the circumstances which are known by and reasonably knowable to the applicant and its legal representatives, and that there has been a reasonable assessment of the relevant risks based on such circumstances.

[84]     Third, there is no definitive set of factors that must or may be taken into account in approving a settlement. But factors relevant to an assessment of the reasonableness of a proposed settlement include:

(a)     the complexity and duration of the litigation;

(b)     the stage of the proceedings;

(c)     the risks of establishing liability, establishing damages, and maintaining the class action;

(d)     the ability of the respondent to withstand a greater judgment than the prospective settlement sum;

(e)     relatedly, the range of reasonableness of the settlement in light of the best recovery;

(f)     the range of reasonableness of the settlement in light of all the risks of litigation; and

(g)     the reaction of the class to the settlement.

25    His Honour’s summary was cited with approval by Middleton J in Andrews v ANZ (at [18]), and the factors are now mirrored in [15.5] of the Court’s Class Actions Practice Note (GPN-CA). Of course, although those factors are a useful guide in assessing a proposed settlement, they are by no means an exhaustive “checklist” of mandatory considerations: Fowkes v Boston Scientific Corporation [2023] FCA 230 at [34] per Lee J.

26    In Caason Investments, Murphy J identified that in assessing whether a settlement is fair and reasonable and might be approved, the Court must decide whether the proposed settlement is within the range of reasonable outcomes, not whether it is the best outcome which might have been won by better bargaining. His Honour also emphasised that the Court’s task is not to second-guess an applicant’s lawyers; rather, the Court ought to recognise that different applicants, and different lawyers advising them, will have different appetites for risk: Caason Investments at [12(e)]. In that vein, it has also been recognised that a relevant, and indeed important, consideration will be any advice given by the applicant’s lawyers as to the prospects of success of the claims in the proceeding and the merits of settlement in light of those prospects: Kelly v Willmott at [76]-[77].

27    Ultimately, whether a proposed settlement is fair and reasonable is a matter for the Court to assess. While evidence of a lack of objection to the proposed settlement by group members is a factor which may indicate its fairness and reasonableness, that fact does not dispose of the question altogether: Caason Investments at [49]; Kelly v Willmott at [58], [61].

Is the proposed settlement fair and reasonable?

28    For the reasons that follow, the proposed settlement falls within the description of being fair and reasonable as between the applicant and the group members on the one hand, and the respondents on the other hand. It is also fair and reasonable as between the group members.

The confidential opinion

29    The Court has had the benefit of a confidential opinion on the proposed settlement prepared by counsel for the applicant, Mr Rubenstein. The relatively advanced stage of the proceeding has enabled counsel to make an informed assessment of the strengths and weaknesses of the proceeding, the manner in which evidence might need to be adduced, and the likely costs and delay to be incurred should the matter proceed to trial. The parties have been able to make a considered assessment of the strengths and weaknesses of the case.

30    The opinion of counsel strongly supports the contention that the proposed settlement is fair, reasonable, and in the interests of the group members. The opinion dealt candidly and comprehensively with considerations relevant to whether the settlement should be approved. Although the detail cannot be discussed, the opinion addressed: the risk of the applicant being unable to establish and recover loss on each claim; concerns relating to issues of insurance; and issues pertinent to some of the group members.

31    From the Court’s point of view, as informed by the confidential opinion and at an impressionistic level, it may be said that the proposed Settlement Sum falls at the upper end of the range of reasonably likely outcomes for both the applicant and the group members. Without revealing the views expressed in the confidential opinion, the following brief observations may be made.

32    First, it is significant that the advice was provided after discovery had been undertaken by the parties, and also after the applicant had obtained an expert report from a forensic accountant.

33    Secondly, although a cursory review of the matter suggests that the applicant would have reasonable prospects of establishing liability in relation to one of its causes of action, complex factual and evidentiary issues were likely to be encountered in relation to others.

Releases required to be given by group members

34    The Deed of Settlement, which is also confidential, contains clauses by which the applicant gives certain releases on its own behalf and on behalf of the group members, subject to the Court making orders to bind all group members under ss 33V and 33ZB of the FCA Act.

35    Generally, releases in a settlement of a class action cannot extend beyond the claims the subject of the proceeding: see Smith v Commonwealth of Australia (No 2) [2020] FCA 837 at [145]. Any releases contained in the Deed of Settlement must be construed consistently with the applicant’s statutory authority. As the Full Court explained in Dyczynski v Gibson at [250]-[251] and [395]-[396], the authority of the representative applicant does not extend to settling individual or idiosyncratic claims of group members. The applicant is entitled only to deal with group members’ rights to the extent that it represents those rights, and only in respect of “common claims” recognised under s 33C of the FCA Act. To the extent that the Deed might contain words which connote a release broader than that which the applicant is permitted to give, they cannot have effect in that way.

36    In the present case, counsel for the applicant properly identified that the scope of the releases is quite broad. However, upon robustly testing their potential application with counsel during the hearing, I am satisfied that the releases are not unreasonably broad, and do not stand in the way of settlement approval.

37    I observe that the releases and covenants were drawn to the attention of the group members in the Notice of Settlement (clauses (c) and (d)). None of the group members has objected to giving them. While that fact is not determinative of whether those releases and covenants are fair and reasonable, it does suggest that the group members, properly informed, are satisfied that the proposed scope is not unreasonably broad nor oppressive to their rights to bring future claims, and therefore that they consider it fair and reasonable to give those releases and covenants as part of the bargain of the agreed settlement.

The proposed Settlement Distribution Scheme

38    In addition to approving the proposed settlement, the proposed distribution of the settlement must be assessed, including its mechanisms to share the settlement proceeds as between the group members once deductions are applied for all appropriate expenses.

39    By way of summary, the Settlement Distribution Scheme provides for the following cascading payments to be made from the Settlement Sum of $1.3 million:

(a)    payment to Piper Alderman of a capped amount of $500,000 (including GST) for its unpaid professional costs and disbursements incurred;

(b)    payment to Piper Alderman of a capped amount of $55,000 (including GST) for its professional costs and disbursements incurred in respect of this application and the process of distribution of the Settlement Sum to group members;

(c)    payment of $100,000 to Mr D’Avoine to compensate him for the time and effort that he has personally spent, and for the significant financial and costs risks that he has borne (D’Avoine Affidavit at [12], [27]-[40]), in coordinating and running this proceeding as the lead plaintiff;

(d)    payment of a commission to those group members who contributed funds to pay for some of the legal costs and disbursements incurred by Piper Alderman under its retainers, equal to 25% of the net amount of the Settlement Sum less the payments made pursuant to steps (a)-(c), being a total of $161,250 (distributed pro rata according to each group member’s contribution);

(e)    full reimbursement of the contributions made by those group members towards the legal costs and disbursements incurred by Piper Alderman under its retainers, in the total amount of $284,970 (distributed pro rata according to each group member’s contribution).

40    That leaves a residue of $198,780 (being approximately 15.3% of the Settlement Sum), which is to be distributed pro rata according to the value of the Class B units held by each group member.

41    Although the proportion of the Settlement Sum to be distributed to group members is low, I am nevertheless satisfied, for the reasons that follow, that it is “just” for the Settlement Sum to be distributed in accordance with the Settlement Distribution Scheme.

Legal costs

42    There is no third-party litigation funder involved in this proceeding. Rather, Piper Alderman was originally retained to act for 22 of the total 28 group members, including the applicant. It has acted as the solicitors for the applicant on a conditional fee basis.

43    The evidence discloses that the contributions of some group members have covered various disbursements and some of the professional fees incurred, with $284,970 contributed since late 2019. However, those contributions have fallen short of covering the amounts required to pay the legal costs that Piper Alderman has incurred under its retainers (First Hardwick Affidavit at [29]). Indeed, Confidential Exhibits F and G to the First Hardwick Affidavit reveal that a very significant amount of time has been spent by Piper Alderman in running this proceeding.

44    Items (a) and (b) of the proposed distribution scheme are payments to Piper Alderman on account of their professional costs and disbursements incurred in the carriage of this matter. The applicant submitted that, because only 22 of the 28 group members are Piper Alderman clients, it would be unfair if the other six group members were to enjoy the fruits of this proceeding without bearing any obligation to share in the payment of professional fees.

45    To address that issue, the Settlement Distribution Scheme picks up a mechanism contained in the Piper Alderman retainer and applies it to all group members, irrespective of whether they are in fact clients. The applicant submitted that this promotes equality between the group members, as they will be treated the same for the purposes of these steps of the distribution regardless of their status as client or non-client, and regardless of whether they have already contributed to the professional fees and disbursements incurred or not (or have contributed a lesser amount than others).

46    Aside from the question of equality between group members, there is also the issue of whether the payments proposed to be made to Piper Alderman under the first two steps are fair and reasonable amounts for the work they have performed. In this respect, the applicant contended that the Settlement Distribution Scheme is fair and reasonable in that it caps these payments at $500,000 (in respect of Piper Alderman’s unpaid costs and disbursements already incurred in the proceeding) and $55,000 (in respect of Piper Alderman’s costs and disbursements of this application and of administering the Settlement Distribution Scheme). In relation to the former amount, the applicant identified that $500,000 is significantly less than the amount of professional fees which Piper Alderman has in fact incurred.

47    Although I expressed to counsel significant unease at the proportion of legal costs incurred in pursuing what might be said to be a relatively modest claim, I was persuaded that many of those costs were consumed in carrying out initial investigations, which were ultimately necessary to establish whether claims could be pursued by the group members with respect to their investment in Class B units. I also take into account that Piper Alderman took the retainer on a speculative basis (D’Avoine Affidavit at [13]), and that the capped amounts to be paid under the Settlement Distribution Scheme do not include any uplift percentage for having so acted (First Hardwick Affidavit at [37]).

48    As such, despite my reservations, I am persuaded that the costs to be recovered by Piper Alderman are reasonable and more than fair in all the circumstances.

Payment to Mr D’Avoine as lead plaintiff

49    Item (c) of the Settlement Distribution Scheme is a payment of $100,000 to Mr D’Avoine to compensate him for taking on the role of lead plaintiff in this proceeding. Mr D’Avoine gave evidence that he effectively became the coordinator of efforts to seek redress for the Class B unit holders, including several who were located overseas in China and Macau (D’Avoine Affidavit at [12]), and that he assumed significant financial risks, including exposure to potential adverse costs orders and applications for security for costs, and giving an undertaking (together with his wife and daughter) that meant they were unable to deal with their apartment (D’Avoine Affidavit at [27]-[40]). Mr D’Avoine was also required to expend significant time and effort over many years for the benefit of the group members in this role.

50    It is uncontroversial that the Court may allow the lead plaintiff in a representative proceeding to be reimbursed for time spent and work undertaken for the benefit of the group members as a whole. In Caason Investments, Murphy J (at [176]) described such payments as:

… compensation … for the time and expense attributable to the representative features of the lead applicant’s involvement as a party in the litigation, not to compensate the applicant for the time and expense which are an ordinary incident of the applicant’s involvement in his, her or its own interests.

(Citations omitted.)

51    Mr D’Avoine estimates that, between June 2017 and February 2025, he spent an average of 6 hours per week contributing to this proceeding as the representative of the class, including by providing information to other group members and attending meetings with and providing instructions to Piper Alderman on behalf of the group members. In total, this amounts to over 2,400 hours of his time which, at his usual salary rate of $65 per hour, means that he has foregone salary payments of about $156,000 which are directly attributable to his involvement in this proceeding (D’Avoine Affidavit at [32]-[37]). The proposed $100,000 payment is therefore only partial compensation for Mr D’Avoine to address his significant sacrifice of time and expense as the lead plaintiff.

52    Counsel submitted that, in circumstances where the proposed payment to Mr D’Avoine is fixed, and is only partial compensation for his foregone salary, it is fair and reasonable that the payment be made. This was said to be further supported by the fact that the other group members were informed of Mr D’Avoine’s extensive work on the proceeding. I accept that submission. The payment to Mr D’Avoine will serve as reasonable compensation for his efforts in advancing the interests of the class, particularly where it can readily be observed that his commitment to the cause has contributed to the settlement being concluded and, therefore, a windfall gain being achieved for the benefit of all group members.

Pro rata distributions

53    As set out previously, items (d), (e) and (f) of the Settlement Distribution Scheme provide for various pro rata distributions of the balance remaining after the first three payments are accounted for.

54    The fourth and fifth payments, respectively, will see the payment of a 25% commission to those group members who contributed towards Piper Alderman’s costs and disbursements, and a full reimbursement of those contributions. Both payments will be distributed pro rata according to each group member’s contribution and, accordingly, were described by counsel as a “balancing mechanism” employed to ensure that the group members who did make contributions would not bear an uneven financial burden in the proceeding.

55    Finally, the Settlement Distribution Scheme provides for distribution of the net balance of the Settlement Sum once the first five payments are made. The remaining amount of $198,780 will be distributed amongst the class pro rata according to the value of the Class B units held by each group member – that is, a payment of a percentage of the balance which reflects the group member’s investment amount as a proportion of the total investment pool in the FEDO Fund of $3,435,000. Noting the differing positions of group members in terms of their investment amounts and contributions to the costs of this proceeding, this represents the fairest and most reasonable way of distributing the settlement funds across the class at this final step.

Confidentiality Orders

56    As to the suppression or non-publication orders sought in respect of certain confidential exhibits to the Rowe Affidavit and Second Hardwick Affidavit, as well as the applicant’s outline of submissions, the relevant principles are well-settled. The principles are outlined at [3]-[6] of my first judgment in this matter and need not be repeated here.

57    The relevant documents contain personal details, commercially sensitive information, and the legally privileged advice of counsel on prospects. For the same reasons as those for which I made confidentiality orders at [7] of my first judgment, and with the same concern to ensure that disclosure does not upset the parties’ compromise, I am satisfied that it is appropriate to make confidentiality orders in respect of that information so as to prevent prejudice to the proper administration of justice.

DISPOSITION

58    For these reasons, I made the orders sought in the terms of the draft form of order handed up by the applicant during the hearing on 19 June 2025, granting approval of the settlement and the Settlement Distribution Scheme, and ordering confidentiality and non-publication of the relevant materials.

59    Upon completion by the applicant of the steps set out in the Settlement Distribution Scheme, and notification to the Court of same in accordance with the orders, the proceeding is to be dismissed with no order as to costs.

Associate:

Dated:    30 June 2025

SCHEDULE OF PARTIES