Augusta Pool 1 UK Ltd v Williamson [2023] NSWCA 93

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Augusta Pool 1 UK Ltd v Williamson [2023] NSWCA 93 Hearing dates: 14 March 2023 Date of orders: 12 May 2023 Decision date: 12 May 2023 Before: Bell CJ at [1]; Ward P at [11]; Adamson JA at [168] Decision: Appeal dismissed with costs. Catchwords: CIVIL PROCEDURE — Representative proceedings — Settlement or discontinuance — Approval of settlement with limitation on deduction out of settlement sum for litigation funder's commission and "after the event" (ATE) insurance premium to 25% of gross settlement sum — Whether primary judge impermissibly imposed onus on the litigation funder to adduce expert evidence – Whether primary judge took into account irrelevant factors in consideration of kinds of evidence adduced in cases in which common fund orders had been sought in the context of a s 173 application – Whether primary judge erred in finding that there was insufficient disclosure made to the group members at the relevant time and in according insufficient weight to lack of objection by group members to the proposed deductions and the competitive process by which litigation funding was arranged Legislation Cited: Civil Procedure Act 2005 (NSW), s 173 Contracts Review Act 1980 (NSW) Design and Building Practitioners Act 2020 (NSW) Federal Court Act 1976 (Cth), s 33ZF Home Building Act 1989 (NSW) Supreme Court Act 1970 (NSW), s 101 Supreme Court Act 1986 (Vic), s 33V(2) Cases Cited: Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 3) [2020] FCA 1885; (2020) 385 ALR 625 Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51; [2003] HCA 18 Australian Securities and Investments Commission v Richards [2013] FCAFC 89 Blairgowrie Trading Ltd v Allco Finance Group Ltd (mgrs and recs apptd) (in liq) (No 3) [2017] FCA 330 Bolitho v Banksia Securities Ltd (mgrs and recs apptd) (in liq) (No 18) [2021] VSC 666 Botsman v Bolitho (No 1) [2018] VSCA 278; (2018) 57 VR 68 Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; [1981] HCA 20 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631; [2020] FCAFC 122 Davaria Pty Ltd v 7-Eleven Stores Pty Ltd [2020] FCAFC 183; (2020) 281 FCR 501 Evans v Davantage Group Pty Ltd (No 3) [2021] FCA 70 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Hall v State of New South Wales [2014] NSWCA 154 Haselhurst v Toyota Motor Corporation Australia Ltd t/as Toyota Australia [2022] NSWSC 1076 House v The King (1936) 55 CLR 499; [1936] HCA 40 In the Marriage of Norbis (1986) 161 CLR 513; [1986] HCA 17 Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114; [2020] FCAFC 119 Kuterba v Sirtex Medical Limited (No 3) [2019] FCA 1374 Liverpool City Council v McGraw-Hill Financial Inc [2018] FCA 1289 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Money Max Int Pty Ltd v QBE Insurance Group Ltd (2016) 245 FCR 191; [2016] FCAFC 148 Norbis v Norbis (1986) 161 CLR 513 at 536, [1986] HCA 17 P Dawson Nominees Pty Ltd v Brookfield Multiplex Limited (No 4) [2010] FCA 1029 Pennington v Norris (1956) 96 CLR 10; [1956] HCA 26 Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41; (2006) 14 BPR 26,639 Pharm-a-Care Laboratories Pty Ltd v Commonwealth (No 6) [2011] FCA 277 Quirk v Suncorp Portfolio Services Ltd in its capacity as trustee for the Suncorp Master Trust (No 2) [2022] NSWSC 1457 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Wetdal Pty Ltd as Trustee for the BlueCo Two Superannuation Fund v Estia Health Ltd [2021] FCA 475 Williamson v Sydney Olympic Park Authority [2022] NSWSC 1618 Texts Cited: J Kirk, 'The Case for Contradictors in Approving Class Action Settlements' (2018) 92 Australian Law Journal 716 M Legg, 'A Critical Assessment of Shareholder Class Action Settlements – The Allco Class Action' (2018) 46 Australian Business Law Review 54 Category: Principal judgment Parties: Augusta Pool 1 UK Limited (Applicant) Terry Walter Williamson (First Respondent) Helen Therese Williamson (Second Respondent) Sydney Olympic Park Authority (Third Respondent) Icon Co (NSW) Pty Ltd (Fourth Respondent) WSP Structure Pty Ltd (Fifth Respondent) Representation: Counsel: D Sulan SC with J Entwisle (Applicant) RCA Higgins SC (Contradictor) RA Yezerski (First and Second Respondents)