Markov v Dukes [2010] FCA 1419

FEDERAL COURT OF AUSTRALIA

Markov v Dukes [2010] FCA 1419 Citation: Markov v Dukes [2010] FCA 1419

Parties: EVE MARKOV v JOSEPH DUKES COLIN ANTHONY GREEN v BARZEN PTY LTD (FORMERLY DUKES FINANCIAL SERVICES PTY LTD) and JOSEPH DUKES

File number(s): VID 207 of 2008 VID 208 of 2008

Judge: FINKELSTEIN J

Date of judgment: 17 December 2010

Catchwords: CORPORATIONS – class action – settlement approval

Legislation: Australian Securities and Investments Commission Act 2001 (Cth) ss s 12DA, 12GB, 50 Corporations Act 2001 (Cth) ss 79, 769B, 817, 819, 851, 910A, 917A, 917B, 917C, 1012B, 1041H, 1325 Federal Court of Australia Act 1976 (Cth) s 33V

Date of hearing: 3 November 2010

Place: Melbourne

Division: General Division

Category: Catchwords

Number of paragraphs: 16

Counsel for the Applicants: M Robins

Solicitor for the Applicants: Australian Securities and Investments Commission

Counsel for the Respondents: S Hibble

Solicitor for the Respondents: Logie Smith Lanyon

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 207 of 2008

IN THE MATTER OF DUKES FINANCIAL SERVICES AUSTRALIA PTY LTD (IN LIQUIDATION) ACN 103 138 932 BETWEEN: EVE MARKOV

Applicant

AND: JOSEPH DUKES

Respondent

JUDGE: FINKELSTEIN J DATE OF ORDER: 17 DECEMBER 2010 WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. There be no publication of confidential exhibits ANS-1, ANS-2 and ANS-4 to the affidavit of Anna Nadine Skreiner sworn 3 November 2010 other than to judges of the court, judges' associates and executive assistants, the applicant and the applicant's legal representatives until the expiry of the period within which an appeal must be lodged or until the conclusion of any appeal that is lodged (whichever is later). 2. Until the expiry of the period within which an appeal must be lodged or until the conclusion of any appeal that is lodged (whichever is later), confidential exhibits ANS-1, ANS-2 and ANS-4 be placed in a sealed envelope and marked "CONFIDENTIAL: NO ACCESS WITHOUT LEAVE OF A JUDGE OF THE COURT" and not be disclosed to any person other than judges of the court, judges' associates and executive assistants, the applicant and the applicant's legal representatives. 3. The document comprising Confidential Annexure A to these orders (the amended Settlement Fund Distribution Schedule) be and is hereby substituted for Annexure A to Schedule 1 to the Deed of Settlement (as amended), which is exhibit CEK-3 to the affidavit of Christina Elizabeth Klemis affirmed 9 September 2010. 4. There be no publication of Confidential Annexure A to these orders until further order. 5. Confidential Annexure A to these orders be placed in a sealed envelope and marked "CONFIDENTIAL: NO ACCESS WITHOUT LEAVE OF A JUDGE OF THE COURT" and not be disclosed to any person other than judges of the court, judges' associates and executive assistants, the applicant and the applicant's legal representatives. 6. The settlement of the proceeding be approved on the terms set out in the Deed of Settlement (as amended) and the Settlement Fund Distribution Schedule (as substituted by these orders). 7. The applicant is authorised to enter into the Deed of Settlement (as amended) and the transactions thereby contemplated for and on behalf of the group members. 8. The court declares that the persons affected and bound by these orders are the applicant, the respondent and the group members who are defined in the application. 9. ASIC cause a notice in the form of Annexure B to this order to be sent by prepaid post to the last known address of the persons listed in Annexure A to this order. 10. The costs of complying with order 9 be paid by ASIC and then be part of the applicant's costs in the cause. 11. The applicant file an affidavit upon the receipt of the settlement sum in accordance with the Deed of Settlement. 12. Upon the filing of the affidavit outlined in order 11: (a) The application be dismissed; (b) All costs orders made to date in the proceeding be vacated; and (c) There otherwise be no order as to the costs of the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. ANNEXURE 'B' Letter to be sent to group members following the Approval Orders «Title» «Given_Name» «Surname» «Address_Line_1» «Address_Line_2» «Street» «Locality» «State» «PostCode» WESTPOINT COLLAPSE: The Australian Securities & Investments Commission's ('ASIC') class action against Joseph Dukes and Barzen Pty Ltd (formerly Dukes Financial Services Pty Ltd) (collectively the 'Respondents') Federal Court Proceeding No VID 207 of 2008 and VID 208 of 2008 (the 'Proceedings') 1. This notice relates to a class action (defined above as the Proceedings), arising out of the Westpoint collapse. This notice is sent to you by order of the Hon Justice Finkelstein made on [INSERT] 2010. 2. This notice is important and contains information which concerns your legal rights and money that may be paid to you. You should read it carefully. If you do not understand any part of it, please seek independent legal advice in relation to its contents. 3. On [] 2010 the Federal Court of Australia approved the settlement of the Proceedings. The settlement is now binding upon you. The Respondents have until [] to pay the Settlement Sum of $1 million ('Settlement Sum'). 4. Pursuant to the Settlement, the Settlement Sum is to be distributed among the Group Members in accordance with the formulae set out at paragraphs 6 and 7 of the Settlement Scheme based on the information contained in the approved Settlement Fund Distribution Schedule. 5. Your Estimated Settlement Amount, taking into account an estimate of the STL Settlement Payments (as those terms are defined in the notice dated [INSERT] 2010) is [INSERT AMOUNT] being the total of: a. an initial settlement payment of approximately [insert amount]; and b. a final settlement payment of approximately [insert amount]. This is an estimate only, and may differ from the actual amount you may ultimately receive. 6. Assuming that no appeal is filed, ASIC is anticipated to distribute: a. the initial settlement payment by cheques mailed to group members in the week commencing [INSERT]; and b. the final settlement payment by cheques mailed to group members in the week commencing [INSERT] 7. It is advisable that you seek legal advice about this Notice, particularly if you do not understand any part of this document. ASIC is not able to give you legal advice. 8. If you have any questions regarding the contents of this letter or the settlement generally, please contact ASIC's Liaison Officer on 1300 300 630 or westpointinvestorliason@asic.gov.au. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 208 of 2008