Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 3) [2020] FCA 1885

Federal Court of Australia

Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 3) [2020] FCA 1885 File number: NSD 544 of 2019

Judgment of: LEE J

Date of judgment: 17 December 2020

Date of publication of reasons: 28 January 2021

Catchwords: REPRESENTATIVE PROCEEDINGS – application for approval of settlement of open class consumer class action – claims that first respondent sold, through dealers, "add on" insurance products alleged to have had no material value – where applicant claimed respondents engaged in misleading and deceptive and unconscionable conduct – where restitution sought by reason that products purchased by mistake – where settlement reached in amount of $138 million – where litigation funder intervened in hearing – where amicus curiae appointed in absence of contradictor – where applicant and litigation funder sought approval of settlement pursuant to s 33V(1) and (2) of Federal Court of Australia Act 1976 (Cth) and/or in equity – settlement fair and reasonable and in interests of group members – where common fund order (CFO) sought at rate of 25% of gross settlement sum – consideration of principles concerning factors relevant in fixing CFO rates – consideration of other areas of law where reasonable remuneration fixed by Court – where evidence disclosed that commission rate sought was within range awarded in similar proceedings – CFO granted – where litigation funder further sought payment of costs associated with "after the event" insurance policy – payment of insurance costs rejected – consideration of equitable basis for granting of CFOs at settlement

Legislation: Federal Court of Australia Act 1976 (Cth) ss 5, 22, Pt IVA, ss 33V, 33ZB Statute of Elizabeth (29 Eliz c4)