Casey v State Trustees Limited (ACN 064 593 148) [2010] FCA 163

FEDERAL COURT OF AUSTRALIA

Casey v State Trustees Limited (ACN 064 593 148) [2010] FCA 163

Citation: Casey v State Trustees Limited (ACN 064 593 148) [2010] FCA 163

Parties: JOHN STANLEY FRANCIS CASEY and PAULA GRACE CASEY v STATE TRUSTEES LIMITED (ACN 064 593 148)

File number: VID 162 of 2008

Judge: GORDON J

Date of judgment: 26 February 2010

Date of hearing: 26 February 2010

Place: Melbourne

Division: GENERAL DIVISION

Number of paragraphs: 17

Counsel for the Applicants: Mr NJ O'Bryan SC

Solicitor for the Applicants: Australian Securities and Investments Commission

Counsel for the Respondent: Mr RA Brett QC with Mr G Ahern

Solicitor for the Respondent: Maddocks

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION VID 162 of 2008

BETWEEN: JOHN STANLEY FRANCIS CASEY

First Applicant

PAULA GRACE CASEY

Second Applicant

AND: STATE TRUSTEES LIMITED (ACN 064 593 148)

Respondent

JUDGE: GORDON J

DATE OF ORDER: 26 FEBRUARY 2010

WHERE MADE: MELBOURNE

THE COURT NOTES THAT: A. The Applicants and the Respondent have agreed to settle the claims made on the terms set out in the Deed of Settlement, a copy of which is Annexure 'A' to these Orders (the Deed of Settlement), save that the Applicants and the Respondent have further agreed that they will seek an order of this Court that the Settlement Scheme, comprising Schedule 1 to the Deed of Settlement, be substituted by an amended Settlement Scheme which comprises 'Annexure B' to this Order. THE COURT ORDERS THAT: 1. The document comprising Annexure 'B' to these Orders (Settlement Scheme) be and is hereby substituted for Schedule 1 to the Deed of Settlement. 2. Paragraph 2 of the Amended Application filed on 28 May 2008 (the Amended Application) be further amended to provide that the group members to whom the proceeding relates within the meaning of s 33H of the Federal Court of Australia Act 1976 (Cth) (the Act) are those persons who: 2.1 invested in or otherwise hold or held mezzanine notes issued by Market Street Mezzanine Ltd (ACN 091 354 513) pursuant to a prospectus dated 20 November 2002; 2.2 suffered financial loss or damage as a result; and 2.3 either: 2.3.1 appear in the Schedule of Potential Group Members (schedule 5 to the Deed of Settlement); or 2.3.2 do not appear in the Schedule of Potential Group Members but lodge a proof of claim which is accepted by the administrator in accordance with the Settlement Scheme - (hereinafter referred to as the group members). 3. Pursuant to s 33V of the Act, the Court hereby approves the settlement of this Proceeding in accordance with the Deed of Settlement. 4. The Respondent pay the sum of $13,500,000 to the Australian Securities and Investments Commission (ASIC) in accordance with the Deed of Settlement no later than 15 March 2010. 5. Pursuant to s 33ZF of the Act or otherwise, the Court authorises the Applicants nunc pro tunc on behalf of the group members to enter into and to give effect to the Deed of Settlement and the transactions thereby contemplated for and on behalf of the group members. 6. Pursuant to s 33ZB(a) of the Act, the Court declares that the persons affected and bound by these Orders are the Applicants, the Respondent, and the group members, save for those group members who have opted out of the representative proceeding where the opt out notice was received by the Court before 4:00pm on 16 September 2008 pursuant to s 33J of the Act. 7. ASIC shall cause a notice in the form of Annexure 'C' to this Motion to be sent by pre-paid post to the last known address of each person listed in Schedule 5 of the Deed of Settlement by no later than 10 March 2010. 8. ASIC shall cause a notice in the form of Annexure 'D' to this Motion to be published in the legal notices section or the equivalent of The Australian newspaper and on ASIC's website by no later than 15 March 2010. 9. The cost of complying with paragraphs 7 and 8 of these Orders be paid by ASIC on behalf of the Applicants and then be part of the Applicants' costs in the cause. 10. All costs orders made to date as between the Applicants and the Respondent are vacated. 11. As between the Applicants and the Respondent there shall be no orders as to the costs of the proceeding. 12. The Amended Application (as amended by paragraph 2 of these Orders) is otherwise dismissed. 13. The Respondent have liberty to pursue its cross-claims against any of the cross-respondents in the proceeding, subject to the terms of clause 5(d) of the Deed of Settlement. 14. Pursuant to s 50 of the Act, the Affidavit of Savas Miriklis sworn 24 February 2010 and the exhibits thereto (the Affidavit) not be published to any person without further order of the Court. The Affidavit be sealed on the Court file and not be disclosed to any person without further order of the Court.