Trilogy Funds Management Limited v KPMG (A Firm) [2017] FCA 432

FEDERAL COURT OF AUSTRALIA

Trilogy Funds Management Limited v KPMG (A Firm) [2017] FCA 432 File number(s): NSD 973 of 2014

Judge(s): JAGOT J

Date of judgment: 21 April 2017

Catchwords: PRACTICE AND PROCEDURE – judicial advice – Court approval of proposed settlement – orders under s 63 of the the Trustee Act 1925 (NSW)

Legislation: Australian Securities and Investments Commission Act 2001 (Cth) Corporations Act 2001 (Cth) Judiciary Act 1903 (Cth) Trustee Act 1925 (NSW) s 63

Cases cited: Hodges and Another v Waters & Others (No 7) [2015] FCA 264, (2015) 232 FCR 97

Date of hearing: 21 April 2017

Registry: New South Wales

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Regulator and Consumer Protection

Category: Catchwords

Number of paragraphs: 17

Counsel for the Applicant: Mr C Withers and Mr R Clark

Solicitor for the Applicant: Squire Patton Boggs

ORDERS NSD 973 of 2014

BETWEEN: TRILOGY FUNDS MANAGEMENT LIMITED AS THE RESPONSIBLE ENTITY OF THE PACIFIC FIRST MORTGAGE FUND Applicant

AND: KPMG (A FIRM) First Respondent

JILLIAN RICHARDS Second Respondent

JUDGE: JAGOT J DATE OF ORDER: 21 APRIL 2017

THE COURT ORDERS THAT:

1. Pursuant to s 63 of the Trustee Act 1925 (NSW), the Court grants the opinion, advice and direction of the Court that the applicant is justified in compromising the proceedings on the terms of the Settlement Deed dated 17 March 2017 entered into between the applicant and respondents. 2. Pursuant to s 7AF(1) of the Federal Court of Australia Act 1976 (Cth) (the Act) the following documents be treated as confidential and be sealed on the Court file in envelopes marked "Not to be opened except by leave of the Court or a Judge" and are not to be published or made available to any person other than the applicant: (a) Confidential affidavit of Amanda Kim Banton dated 19 April 2017; (b) Confidential Exhibit AKB-2; and (c) Confidential written submissions of the applicant dated 19 April 2017. For the avoidance of doubt, this order does not extend to suppression of the disclosure of the contents of those documents by the parties themselves. 3. Order 2 applies until further order of the Court. 4. Pursuant to s 37AG(1)(a) of the Act: (a) Orders 2 and 3 are made on the grounds that the orders are necessary in order to: (i) Prevent prejudice to the proper administration of justice given the documents contain without prejudice material that is subject to confidentiality negotiated and agreed between the parties; and/or (ii) To prevent prejudice to the proper administration of justice because the documents are subject to legal professional privilege or contain material subject to legal professional privilege, which privilege has not been waived. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.