FEDERAL COURT OF AUSTRALIA
Davaria Pty Limited v 7-Eleven Stores Pty Ltd (No 13) [2023] FCA 84
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File number(s): |
VID 180 of 2018VID 182 of 2018 |
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Judgment of: |
O’CALLAGHAN J |
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Date of judgment: |
14 February 2023 |
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Catchwords: |
REPRESENTATIVE PROCEEDINGS – application for approval of settlement by Court pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) – whether proposed distribution scheme fair and reasonable as between group members – whether legal costs incurred in the proceedings fair and reasonable – whether legal costs proportionate – whether cost reports prepared by court appointed referee should be adopted – whether adequate disclosure and monitoring of legal costs – whether any deferred fee arrangements in place between applicants’ solicitors and litigation funder – whether funding commission fair and reasonable – whether Federal Court of Australia has the power to make a common fund order pursuant to s 33V(2) of the Federal Court of Australia Act 1976 (Cth) or in its equitable jurisdiction under s 5(2) – held: Federal Court of Australia has no power to make a common fund order – Cantor v Audi Australia Pty Ltd (No 5) [2020] FCA 637 applied – whether, if the court did have such power, a common fund order should be made in any event – whether a fund equalisation order should be made and if so in what amount – whether terms of funding agreements proved – submissions filed by applicants after the hearing had concluded going beyond terms of leave granted – submissions thus ignored – whether applicants’ granted leave to re‑open their case to adduce further evidence – whether on the application of the applicants litigation funder entitled to a “gross‑up” of its funding commission, including in circumstances where funder did not seek it – orders made amending settlement scheme to permit administrator temporarily to transfer part or all of settlement sum from a “settlement distribution account” to other bank accounts for the purpose of accruing higher rates of interest – power of court to make such orders considered – further hearing of proceedings adjourned to a date to be fixed |
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Legislation: |
Australian Securities and Investments Commission Act 2001 (Cth) ss 12GF, 12GM Competition and Consumer Act 2010 (Cth) ss 51ACB, 82, 82(1), 82(2), 87, 87(1), 87(2), Schedule 2 ss 236, 236(1), 236(2), 237, 237(3)(a), 243 Evidence Act 1995 (Cth) ss 50, 136 Federal Court of Australia Act 1976 (Cth) ss 33V, 33ZF, 54A Class Actions Practice Note (GPN‑CA) |
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Cases cited: |
Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 3) [2020] FCA 1885; (2020) 385 ALR 625 Bale v Mills (2011) 81 NSWLR 498 Blairgowrie Trading Ltd v Allco Finance Group Ltd (No 3) [2017] FCA 330; (2017) 343 ALR 476 BMW Australia Ltd v Brewster (2019) 269 CLR 574 Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17 Bolitho v Banksia Securities Ltd (No 18) (remitter) [2021] VSC 666 Botsman v Bolitho (2018) 57 VR 68 Bradgate (Trustee) v Ashley Services Group Ltd (No 2) [2019] FCA 1210 Camilleri v The Trust Company (Nominees) Ltd [2015] FCA 1468 Cantor v Audi Australia Pty Ltd (No 5) [2020] FCA 637 Clime Capital Ltd v UGL Pty Ltd [2020] FCA 66 Davaria Pty Ltd v 7-Eleven Stores Pty Ltd (No 11) [2022] FCA 331 Davaria Pty Ltd v 7‑Eleven Stores Pty Ltd (No 12) [2022] FCA 699 Downie v Spiral Foods Pty Ltd [2015] VSC 190 Earglow Pty Ltd v Newcrest Mining Ltd [2016] FCA 1433 Fisher (trustee for the Tramik Super Fund Trust) v Vocus Group Ltd (No 2) [2020] FCA 579 Gulf Conveyor Systems Pty Ltd v Gulf Integrated Systems Solutions Pty Ltd [2020] FCA 1245 Hall v Arnold Bloch Leibler (a firm) (No 2) [2022] FCA 163 Hall v Pitcher Partners (a firm) [2022] FCA 1524 Han Jing Pty Ltd v Nestle Australia Ltd [2021] FCA 143 Hawkins v Clayton (1988) 164 CLR 539 McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd (No 3) [2020] FCA 461 Modtech Engineering Pty Ltd v GPT Management Holdings Ltd [2013] FCA 626 Money Max Int Pty Ltd v QBE Insurance Group Ltd (2016) 245 FCR 191 Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388 NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd (No 4) [2010] FCA 1029 Petersen Superannuation Fund Pty Ltd v Bank of Queensland Ltd (No 3) [2018] FCA 1842; (2018) 132 ACSR 258 Re Banksia Securities Ltd (Receivers and Managers Appointed) [2017] VSC 148 Turner v TESA Mining (NSW) Pty Ltd (No 2) [2022] FCA 435; (2022) 314 IR 214 Uren v RMBL Investments Ltd (No 2) [2020] FCA 647 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 |
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Division: |
General Division |
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Registry: |
Victoria |
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National Practice Area: |
Commercial and Corporations |
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Sub-area: |
Commercial Contracts, Banking, Finance and Insurance |
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Number of paragraphs: |
360 |
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Date of last submissions |
9 October 2022 |
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Date of hearing: |
28‑31 March 2022, 22 April 2022, 13 May 2022 |
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Counsel for the Applicants: |
Mr D Pritchard SC with Mr P Tucker, Mr NYH Li and Mr A Rizk |
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Solicitor for the Applicants: |
Levitt Robinson Solicitors |
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Counsel for 7-Eleven Stores Pty Ltd: |
Mr RG Craig QC with Mr AN McRobert |
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Solicitor for 7-Eleven Stores Pty Ltd: |
Norton Rose Fulbright |
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Counsel for 7-Eleven Inc: |
7-Eleven Inc did not appear |
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Counsel for Galactic Seven Eleven Litigation Holdings LLC: |
Mr SG Finch SC with Mr DTW Wong |
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Solicitor for Galactic Seven Eleven Litigation Holdings LLC: |
Madison Marcus |
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Contradictor: |
Mr JA Redwood SC with Mr RK Jameson |
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Costs referee: |
Ms EM Harris |
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Date of hearing: |
11 October 2022 |
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Counsel for the Administrator: |
Mr D Pritchard SC |
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Solicitor for the Administrator: |
Levitt Robinson Solicitors |
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