Australian Retirement Group Pty Ltd v The Commonwealth Bank of Australia Ltd (No 4) [2023] NSWSC 1571

Supreme Court New South Wales

Medium Neutral Citation: Australian Retirement Group Pty Ltd v The Commonwealth Bank of Australia Ltd (No 4) [2023] NSWSC 1571 Hearing dates: 13 December 2023 Decision date: 15 December 2023 Jurisdiction: Equity - Commercial List Before: Ball J Decision: (1) Pursuant to ss 173 and 183 of the Civil Procedure Act 2005 (NSW) (the Act), the discontinuance of the Proceeding is approved on the terms set out in the Deed of Settlement dated 4 September 2023 annexed as annexure "A" to the Affidavit of Andrea Lee sworn on 19 September 2023 (Deed of Settlement). (2) Pursuant to s 183 of the Act, the Plaintiffs are authorised, nunc pro tunc, to enter into and give effect to the Deed of Settlement (and all transactions contemplated by it) for and on behalf of the group members who have not opted out of the Proceeding. (3) Pursuant to s 179 of the Act, the persons affected and bound by the discontinuance are the Plaintiffs, the persons identified in Order 2 above, the Defendant and Hall Partners. (4) Pursuant to s 183 of the Act, the releases, covenants, and plea bar in the Deed of Settlement are to operate without prejudice to the right of any party to the Deed of Settlement to make an application to enforce the Deed of Settlement in a new proceeding. (5) Pursuant to s 183 of the Act, the group members listed at Annexure A to these orders are taken to have validly opted out of these proceedings. Catchwords: CIVIL PROCEDURE — Representative proceedings — Settlement or discontinuance — Court approval — Where claim is not strong — Not realistic for the proceedings to continue without litigation funding Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322; [2006] FCA 1388 Findlay v DSHE Holdings Ltd (2021) 150 ACSR 535; [2021] NSWSC 249 Texts Cited: Interim Report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, vol 1 (September 2018) Category: Consequential orders Parties: Australian Retirement Group Pty Limited (First Plaintiff) Peter Gower Walsh (Second Plaintiff) The Commonwealth Bank of Australia Limited (Defendant) Representation: Counsel: T Hall (Solicitor for the plaintiffs) I Ahmed SC (Defendant)