Davaria Pty Limited v 7-Eleven Stores Pty Ltd (No 13) [2023] FCA 84

FEDERAL COURT OF AUSTRALIA

Davaria Pty Limited v 7-Eleven Stores Pty Ltd (No 13) [2023] FCA 84 File number(s): VID 180 of 2018 VID 182 of 2018

Judgment of: O'CALLAGHAN J

Date of judgment: 14 February 2023

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