Wetdal Pty Ltd as Trustee for the BlueCo Two Superannuation Fund v Estia Health Limited

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 07 May 2021
• Neutral Citation: [2021] FCA 475
• Date: 07 May 2021

FEDERAL COURT OF AUSTRALIA

Wetdal Pty Ltd as Trustee for the BlueCo Two Superannuation Fund v Estia Health Limited [2021] FCA 475

File number(s):	VID 758 of 2019
Judgment of:	BEACH J
Date of judgment:	7 May 2021
Catchwords:	REPRESENTATIVE PROCEEDINGS – approval of settlement – preliminary orders for registration of group members – Clayton’s class closure – conflicting New South Wales authority – form of notice to group members – characterisation of so called “contingent extinguishment” of claims – exercise of power under s 33ZF(1) of the Federal Court of Australia Act 1976 (Cth) – approval under s 33V(1) – exercise of power under s 33V(2) – settlement approved – orders made
Legislation:	Civil Procedure Act 2005 (NSW) s 183 Federal Court of Australia Act 1976 (Cth) ss 33T, 33V, 33X, 33Z, 33ZA, 33ZB, 33ZF Supreme Court Act 1986 (Vic) s 33ZG
Cases cited:	Blairgowrie Trading Ltd v Allco Finance Group Ltd (No 3) (2017) 343 ALR 476 BMW Australia Ltd v Brewster; Westpac Banking Corporation v Lenthall (2019) 94 ALJR 51 Earglow Pty Ltd v Newcrest Mining Ltd (2015) 230 FCR 469 Evans v Davantage Group Pty Ltd (No 2) [2020] FCA 473 Haselhurst v Toyota Motor Corporation Australia (2020) 101 NSWLR 890 McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd (No 3) [2020] FCA 461 Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (2017) 252 FCR 1 Mobil Oil v State of Victoria (2002) 211 CLR 1 Muswellbrook Shire Council v Royal Bank of Scotland NV [2016] FCA 819 Newstart 123 Pty Ltd v Billabong International Ltd (2016) 343 ALR 662 Regent Holdings Ltd v State of Victoria (2012) 36 VR 424 Smith v Commonwealth of Australia (No 2) [2020] FCA 837 The Owners – Strata Plan No 87231 v 3A Composites GmbH (No 3) [2020] FCA 748 Wigmans v AMP Ltd (2020) 102 NSWLR 199
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Number of paragraphs:	136
Date of hearing:	4 May 2021
Counsel for the Applicants:	Mr W A D Edwards and Ms S M Hooper
Solicitor for the Applicants:	Phi Finney McDonald
Counsel for the Respondent:	Mr M Garner and Mr G Kozminsky
Solicitor for the Respondent:	Minter Ellison
Counsel for the Interveners:	Mr B F Quinn QC and Mr T J D Chalke
Solicitor for the Interveners:	Mackay Chapman

ORDERS

		VID 758 of 2019
BETWEEN:	WETDAL PTY LTD AS TRUSTEE FOR THE BLUECO TWO SUPERANNUATION FUND First Applicant ; RONALD JOHN RENTON Second Applicant
AND:	ESTIA HEALTH LIMITED (ACN 160 986 201) Respondent
	INVESTOR CLAIM PARTNER PTY LTD (ACN 611 462 027) First Intervener ; ICP CAPITAL PTY LTD (ACN 616 534 911) Second Intervener ; LLS FUND SERVICES PTY LTD (ACN 627 975 213) Third Intervener

order made by:	BEACH J
DATE OF ORDER:	7 MAY 2021

THE COURT ORDERS THAT:

1. Pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth):

(a) settlement of the proceeding upon the terms set out in the Settlement Deed between the Applicants and the Respondent, Phi Finney McDonald Pty Limited, Investor Claim Partner Pty Ltd, ICP Capital Pty Ltd and LLS Fund Services Pty Ltd, and dated 15 February 2021 (as varied by the Deed of Variation dated 3 May 2021) (Settlement Deed); and

(b) the scheme for the distribution of the settlement sum (Settlement Distribution Scheme) (and any annexures therein) filed by the Applicants (subject to order 10 below), with such modifications as are necessary to accord with the Court’s reasons for judgment,

(together, Settlement Documents) be approved.

2. Pursuant to s 33ZF of the Act, the Court authorises the Applicants nunc pro tunc for and on behalf of persons who meet the definition of “Group Member” in paragraph 1 of the Amended Statement of Claim filed on 11 November 2019 and who did not file an opt out notice in accordance with:

(a) the orders made on 3 March 2020; or

(b) the orders made on 29 March 2021

(together, Registration Orders), all such persons being Bound Group Members, to enter into and give effect to the Settlement Documents and the transactions contemplated therein for and on behalf of Bound Group Members.

3. Pursuant to s 33ZB and s 33ZF of the Act, the persons affected and bound by the settlement of the proceeding are:

(a) the Applicants, the Respondent, Bound Group Members, Phi Finney McDonald Pty Ltd, William Roberts Pty Ltd; and

(b) ICP Capital Pty Ltd and LLS Fund Services Pty Ltd (together, the Funders).

4. Pursuant to s 33ZF of the Act, Mr Jeremy Alexander Zimet of Phi Finney McDonald be appointed Administrator of the Settlement Distribution Scheme (Administrator) and is to act in accordance with the rules of the Settlement Distribution Scheme, subject to any direction of the Court.

5. Pursuant to ss 22, 23 or 33ZF of the Act, r 1.32 of the Federal Court Rules 2011 (Cth) and/or the Court’s implied jurisdiction, the claims in the proceeding as between the Applicants and Respondent be dismissed, on the basis that the dismissal is a defence and absolute bar to any claim (either direct or indirect) or proceeding by the applicants or any Bound Group Member as against the Respondent (and its Related Parties as defined in the Settlement Deed) which is in respect of, or arise out of, the same, similar or related circumstances raised in the proceeding.

6. Pursuant to s 33ZF of the Act, that the releases and pleas in bar in the Settlement Deed and order 5 above, operate without prejudice to:

(a) the right of any party to the Settlement Deed (including any Bound Group Member) to make an application to enforce the Settlement Deed in a new proceeding; or

(b) the right of any Bound Group Member to make an application to the Court in accordance with the terms of the Settlement Distribution Scheme; or

(c) the right of the Administrator to refer any issues relating to the Settlement Distribution Scheme to the Court for direction or determination in accordance with the terms of the Settlement Distribution Scheme.

7. Pursuant to ss 22, 23 or 33ZF of the Act, r 1.32 of the Rules and/or the Court’s implied jurisdiction there be no orders as to costs and all previous orders for costs in the proceeding be vacated with effect from the date of the completion of the administration of the Scheme, being the date on which the final distribution from the Settlement Distribution Fund (as defined in the Settlement Distribution Scheme) is confirmed by the Administrator.

8. Pursuant to s 54A of the Act and r 28.67 of the Rules, the Court adopts the report of the Referee appointed pursuant to order 15 of the orders made on 26 February 2021, being the report of Mr Ian Ramsey-Stewart dated 26 March 2021 including annexures, which report was provided to the Chambers of Justice Beach on 26 March 2021.

9. Pursuant to s 33V and/or s 33ZF of the Act:

(a) for the purposes of the Settlement Distribution Scheme, the “Applicants’ Costs and Disbursements”, incurred in connection with the proceeding on its own...