Kemp v Westpac Banking Corporation (No 4) [2023] FCA 830

FEDERAL COURT OF AUSTRALIA

Kemp v Westpac Banking Corporation (No 4) [2023] FCA 830 File number(s): VID 134 of 2020

Judgment of: O'BRYAN J

Date of judgment: 21 June 2023

Date of publication of reasons: 21 July 2023

Catchwords: REPRESENTATIVE PROCEEDINGS – application for approval of settlement of representative proceeding – s 33V of the Federal Court of Australia Act 1976 (Cth) – principles relevant to settlement approval – whether proposed settlement fair and reasonable – whether proposed settlement distribution scheme just – whether certain deductions from settlement sum should be allowed – where proceeding conducted on a "no win, no fee" basis and without litigation funding – whether deduction for legal costs and disbursements, including "success fee" for applicant's solicitors, should be allowed – whether actual and proposed costs of administration of settlement distribution scheme should be allowed, including "hold back sum" to allow distribution to group members permitted to register to participate in settlement after close of registration – whether costs incurred by applicant's solicitors for adverse costs insurance should be allowed – whether reimbursement payments to applicant and sample group members should be allowed – whether non-publication orders should be made – settlement approved on basis that distribution of settlement sum proposed be adjusted to reflect disallowance of "hold back sum" and allowance of other proposed deductions – limited non-publication orders made

Legislation: Australian Securities and Investments Commission Act 2001 (Cth), ss 12CB, 12DA, 12DM Corporations Act 2001 (Cth), ss 961B, 961G Federal Court of Australia Act 1976 (Cth), Pt IVA, ss 33V, 37AF, 37AG(1)(a), 54A, National Credit Code, s 143(1)(b) Federal Court Rules 2011 (Cth), r 28.67