Federal Court of Australia

Boulos v M.R.V.L. Investments Pty Ltd (Settlement Distribution) [2026] FCA 1223

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 8 July 2026 is dismissed.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    On 29 November 2024, the Court approved the settlement of this representative proceeding: Boulos v M.R.V.L. Investments Pty Ltd (Settlement Approval) [2024] FCA 1377. This involved approval of a Settlement Distribution Scheme and the appointment of Mr Rory Markham of Adero Pty Ltd as Administrator of the Scheme. The Court also approved administration costs in the amount of $723,805, to be deducted from the settlement sum.

2    The administration of the Scheme commenced on 13 December 2024. The Administrator caused employees of Adero to prepare databases for calculating the entitlement of each of the Registered Group Members (RGMs).

3    On 19 March 2025, the Administrator caused ‘Anticipated Settlement Statements’ to be sent by email to all RGMs. On 16 June 2025, after the expiry of the Review Period under the Scheme, the Administrator caused ‘Final Settlement Statements’ to be sent to RGMs.

4    The Administrator was unable to contact or pay a number of RGMs entitled to a payment. On 8 July 2026, the applicant filed an interlocutory application intended to address that situation. The interlocutory application also sought orders with respect to confidentiality and costs.

5    On 23 July 2026, the Administrator provided proposed consent orders to the Court which would have seen orders: (a) for confidentiality with respect to the identity of RGMs generally and those who had not been paid more specifically; (b) implementing a regime for final correspondence to RGMs entitled to a payment but who remained unpaid and final distribution of surplus funds, including by donation to charities different to the charity identified in the Scheme; and (c) for additional costs in the amount of $25,000 being approved for payment to Mr Markham as Administrator.

6    The Court listed the matter for hearing on 18 August 2026 to address, amongst other things, why: (a) confidentiality orders were appropriate; (b) the proposed charity was sought to be changed; and (c) additional administration costs were appropriate.

7    On 17 August 2026, the Administrator filed written submissions and proposed different orders. The Administrator no longer sought confidentiality orders and no longer sought a change in the charity proposed to receive any surplus funds. The Administrator reduced his claim for additional administration costs from $25,000 to $12,500.

8    In his written submissions dated 17 August 2026 (AS1), the Administrator confirmed that an amount of $113,319.23 remained to be distributed: AS1 at [11]. He stated that 55 RGMs had not been paid their settlement entitlement: AS1 at [13]. He was “of the view that the majority of those individuals are no longer residents in Australia”: AS1 at [14]. The Administrator referred to cl 5.5 of the Scheme which provides that:

If after multiple attempts at contacting the Group Member, the Administrator is unable to contact the Group Member and receive the relevant information required to distribute the Settlement Entitlement, a final communication must be sent stating that should the Group Member not reply by a certain date, the Administrator will send the Settlement Entitlement to the Public Trustee and Guardian to be held as an “unclaimed amount” pursuant to section 259 of the Legal Profession Act 2006 (ACT).

9    Section 259 of the Legal Profession Act 2006 (ACT) provides:

259    Unclaimed trust money

(1)    If an amount of trust money held by a law practice becomes an unclaimed amount, the practice must pay the amount to the Territory, by paying it to the public trustee and guardian, not later than 1 month after the day the amount becomes an unclaimed amount.

(2)    An amount of trust money held by a law practice becomes an unclaimed amount if—

(a)    the amount has been held by the practice for a period of 6 years during which the practice has had no knowledge of the existence or address of the person on whose behalf the amount is held; or

(b)    the person on whose behalf the amount is held failed to accept payment of the amount when tendered.

Note    A person who claims to be entitled to an unclaimed amount that has been paid to the public trustee and guardian under this section may apply to the public trustee for payment of the amount (see Unclaimed Money Act 1950, pt 5).

10    The Administrator stated that he had “formed the view that the non-responsive Group Members are unlikely to participate and are otherwise non-contactable … despite extraordinary attempts being made” to contact them: AS1 at [39]. The Administrator repeated the view that the majority of the 55 unpaid RGMs were no longer residents in Australia and expressed the view that those individuals would not “become aware [of matters which would lead them] to contact the ACT Public Trustee” if the funds were to be paid to that institution as unclaimed moneys: AS1 at [39]. The Administrator stated he was concerned that the current regime might require Adero to hold the amounts which it now holds for the 55 unpaid RGMs in its trust account for six years or longer, by reason of the definition of “unclaimed amount” in s 259(2).

11    In the circumstances, the Administrator sought orders for a final communication to the 55 unpaid RGMs after which any remaining settlement proceeds would be equitably distributed to paid RGMs or paid to the charity which had been identified in the Scheme. The reason new charities had initially been proposed was because of the erroneous view that the charity identified in the Scheme no longer existed.

12    At the hearing on 18 August 2026, the Administrator relied upon Mr Markham’s affidavit dated 8 July 2026 and the written submissions dated 17 August 2026. The affidavit described, in a general fashion, what attempts had been made to contact certain RGMs, but not in a way which permitted any real analysis of the attempts made to contact the 55 RGMs who had not yet been paid. The Court sought to determine precisely what steps had been taken to contact the 55 RGMs concerned, for example whether letters had been sent by post to those RGMs who had given overseas addresses when registering as a group member. Such letters had not been sent. The Court was not satisfied on the material available that sufficient attempts had been made to contact the 55 RGMs and directions were made for the Administrator to file a document providing further information which addressed more specifically the 55 RGMs concerned.

13    On 21 August 2026, the Administrator filed further written submissions (AS2) to which was annexed a document which addressed each of the unpaid RGMs. These written submissions identified that there were now only 43 unpaid RGMs: AS2 at [3]. Although this was not conveyed in the written submissions dated 17 August 2026, or the oral submissions made on 18 August 2026, the Administrator stated that “a sustained effort to contact the group again” between filing the interlocutory application and the hearing on 18 August 2026 had resulted in a further 7 RGMs being contacted. Further, the Administrator had now determined that 5 individuals were not in fact RGMs at all. This explained why there were now only 43 unpaid RGMs. According to the annexure to AS2, the 43 unpaid RGMs are entitled to a total between them of $98,615.27.

14    The annexure sets out certain information concerning the 43 RGMs, including the contact details provided by them when they registered and some information concerning attempts to contact them. Significantly, notwithstanding the view twice expressed by the Administrator in the written submissions dated 17 August 2026 that the majority of the unpaid RGMs resided outside of Australia, there were only 7 who were now said to reside overseas. Each of those had provided an overseas address. Although phone and email contact had been attempted, no letters had been posted overseas.

15    The two largest entitlements for those RGMs thought to be resident in Australia exceed $10,000. One RGM thought to be overseas has an entitlement of over $10,000. These amounts are obviously not trivial. It is unlikely that an RGM would be uninterested in receiving such an entitlement despite taking the step of registering as a group member. A further 16 RGMs have entitlements ranging from a little over $1,300 to almost $7,000.

16    Whilst the Administrator describes his attempts at contact as “extraordinary”, it seems that certain simple searches – for example Google searches of names and/or email addresses – have not been conducted. It seems likely, for example, that a Google search of the names or email addresses provided might furnish possible means of contact through social media platforms such as Instagram or LinkedIn or by indicating where the relevant person now studies or works. This is not a lengthy or costly exercise. It is confined to 43 people.

17    In my view, not enough has been done to contact the 43 unpaid RGMs. My concern is amplified by the fact that the Administrator brought this application on the stated basis of his view that the majority of the unpaid RGMs resided outside of Australia when that was not the case.

18    In the annexure to AS2, the Administrator has identified certain steps which he proposes taking, including sending letters by post to the 7 unpaid RGMs who registered with overseas addresses. At a minimum, the various methods of communication there proposed – in relation to all 43 unpaid RGMs – should be taken. What is reasonable by way of further attempts at contact (apart from those identified in the annexure) might be informed by the level of the unpaid RGM’s entitlement. Whilst the Administrator implied that it would be burdensome to keep funds in trust for a lengthy period of time, it is not clear why that is so, or why the administrative costs associated with further attempts at contact or holding moneys in trust are not amply provided for within the grant of $723,805 in administration costs already approved by the Court.

19    The Administrator’s application for further administration costs should be refused. First, it must always have been anticipated that there would likely be difficulty in contacting certain RGMs when distributing the net settlement proceeds. This was implicitly recognised in the Scheme approved by the Court. Such costs must have been included in the estimate of costs provided to (and approved by) the Court when approving the settlement. Secondly and more significantly, the evidence does not suggest, and it was not submitted, that the amount of $723,805 already provided was not sufficient to cover the total costs of administration, including this application and the events to which it relates.

20    It follows that the interlocutory application must be dismissed. Obviously, this does not prevent a further application should circumstances materially alter. If a further application is brought, after further inquiries and searches have been made, the evidence should clearly indicate what searches have been conducted with respect to the RGMs who have not been able to be located, contacted or paid.

Associate:

Dated:    26 August 2026