Ashita Tomi Pty Ltd as trustee for Esskay Super Fund v RCR Tomlinson Ltd trading as RCR Tomlinson Ltd (No 2) [2024] NSWSC 717

Supreme Court New South Wales

Medium Neutral Citation: Ashita Tomi Pty Ltd as trustee for Esskay Super Fund v RCR Tomlinson Ltd trading as RCR Tomlinson Ltd (No 2) [2024] NSWSC 717 Hearing dates: 13 June 2024 Date of orders: 13 June 2024 Decision date: 13 June 2024 Jurisdiction: Equity - Commercial List Before: Nixon J Decision: Approval given to settlement Catchwords: REPRESENTATIVE PROCEEDINGS – shareholder class action – approval of settlement – consideration of legal costs, funding commission, payments to lead plaintiffs and costs of administering settlement scheme – consideration of proposed distribution methodology – no objection from any group member – common fund order made – settlement approved Legislation Cited: Civil Procedure Act 2005 (NSW), ss 173, 179, 183 Corporations Act 2001 (Cth), ss 674, 729 Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7-8 Cases Cited: Ashita Tomi Pty Ltd as trustee for Esskay Super Fund v RCR Tomlinson Ltd trading as RCR Tomlinson Ltd [2023] NSWSC 344 BMW Australia Ltd v Brewster; Westpac Banking Corp v Lenthall (2019) 269 CLR 475; [2019] HCA 45 Camilleri v Trust Company (Nominees) Ltd [2015] FCA 1468 Cuong Ly; HIH Insurance Ltd (In Liq), Re v HIH Insurance Limited (In Liq) [2017] NSWSC 380 Ewok Pty Ltd atf E & E Magee Superannuation Fund v Wellard Ltd [2024] FCA 296 Findlay v DSHE Holdings Ltd; Mastoris v DSHE Holdings Ltd; Mastoris v Alliance Australia Insurance Ltd [2021] NSWSC 249 Haselhurst v Toyota Motor Corporation Australia Ltd t/as Toyota Australia; Whisson v Subaru (Aust) Pty Ltd; Kularathe v Honda Australia Pty Ltd; Brewster v BMW Australia [2022] NSWSC 1076 Quirk v Suncorp Portfolio Services Ltd in its capacity as trustee for Suncorp Master Trust (No 2) [2022] NSWSC 1457 Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925 Category: Principal judgment Parties: Ashita Tomi Pty Ltd as trustee for Esskay Super Fund (First Plaintiff) CJMcG Pty Ltd as trustee for CJMcG Superannuation Fund (Second Plaintiff) Jorge Mayer (Third Plaintiff) RCR Tomlinson Ltd trading as RCR Tomlinson Ltd (First Defendant) Paul Dalgleish (Second Defendant) Bruce James (Third Defendant) Omni Bridgeway Limited in its capacity as appointed agent and investment manager for each of Omni Bridgeway (Fund 2) Pty Ltd and Omni Bridgeway (Fund 3) Pty Ltd and Burford Asia Investments Pte Ltd (Intervenors) Representation: Counsel: P Meagher w A Ilic (Plaintiffs) C Colquhoun SC (First Defendant) WAD Edwards KC w M Cowden (Intervenors)