Victopia Apartments Class Action
Certain Underwriters at Lloyd’s Group Litigation Funding Scheme (ARSN 647 497 229) (Scheme)
Notice dated 12 December 2022
Omni Bridgeway Investment Management Limited (ACN 642 086 593 and AFSL No. 524023) (
Issuer) gives notice that on 10 November 2022 the High Court of Australia granted the insurers of BMX special leave to appeal the decision of the NSW Court of Appeal. The relevant decision of the NSW Court of Appeal (as set out below in the Notices dated 21 July and 22 August 2022) dismissed the appeal of the insurers of BMX against the decision of the NSW Supreme Court, which had granted leave to the representative plaintiff to proceed with the Class Action. Omni Bridgeway expects that any hearing before the High Court of Australia is likely to take place no earlier than March 2023.
As detailed below, Omni Bridgeway will fund the representative plaintiff’s legal costs in relation to the insurers’ appeal and accordingly, this may increase the overall costs of the Class Action.
Notice dated 22 August 2022 – Insurers seek special leave to appeal
Omni Bridgeway Investment Management Limited (ACN 642 086 593 and AFSL No. 524023) (
Issuer) gives notice that on 15 August 2022, the insurers of BMX filed an application for special leave to appeal to the High Court of Australia. As detailed in the Notices dated 14 December 2021, 25 March 2022 and 21 July 2022, the insurers initially appealed against the orders made by the NSW Supreme Court, which had granted leave to the representative plaintiff to proceed with the Class Action. This appeal was dismissed by the NSW Court of Appeal in July 2022 and the insurers now seek to appeal the dismissal in the High Court of Australia.
Omni Bridgeway will fund the representative plaintiff’s legal costs in relation to the insurers’ special leave application and an appeal, if special leave is granted by the High Court of Australia and accordingly, this may increase the overall costs of the Class Action.
Notice dated 21 July 2022 – Appeal outcome
Omni Bridgeway Investment Management Limited (ACN 642 086 593 and AFSL No. 524023) (
Issuer) gives notice that on 20 July 2022, the NSW Court of Appeal dismissed the insurers’ appeal from the orders made by the NSW Supreme Court, which granted leave to the representative plaintiff to proceed with the Class Action. The NSW Court of Appeal also ordered the insurers to pay the representative plaintiff’s costs of the appeal. This means that the New Zealand Claimants are now able to continue to pursue their claims against the insurers.
Notice dated 20 July 2022
Omni Bridgeway Investment Management Limited (ACN 642 086 593 and AFSL No. 524023) (
Issuer) gives notice that on 16 June 2022 the Full Court of the Federal Court of Australia delivered judgment in
LCM Funding Pty Ltd v Stanwell Corporation Limited [2022] FCAFC 103. The Court decided that a litigation funding scheme is not a managed investment scheme.
The Issuer is considering the impact of the judgment on the managed investment scheme that has been registered in respect of this class action and will provide a further notice to scheme members and prospective scheme members.
The Issuer does not anticipate that the decision has any impact on the class action itself, and the Issuer expects the class action to continue progressing in the NSW Supreme Court.
Notice dated 25 March 2022 – Insurers seek leave to appeal
Omni Bridgeway Investment Management Limited (ACN 642 086 593 and AFSL No. 524023) (
Issuer) gives notice that on 7 March 2022, the insurers of BMX filed a summons seeking leave to appeal from the orders made by the NSW Supreme Court, which granted leave to the representative plaintiff to proceed with the Class Action. Omni Bridgeway will fund the representative plaintiff’s legal costs in relation to the insurers’ summons and an appeal, if leave is granted by the NSW Court of Appeal and accordingly, this may increase the overall costs of the Class Action.
Notice dated 14 December 2021 – Leave to proceed granted
Omni Bridgeway Investment Management Limited (ACN 642 086 593 and AFSL No. 524023) (
Issuer) gives notice that on 8 December 2021, the NSW Supreme Court granted leave, pursuant to section 5 of the
Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), to the representative plaintiff to proceed with the Class Action. This means that the New Zealand Claimants are now able to continue to pursue their claims against the insurers of BMX.
In accordance with section 3 of the Product Disclosure Statement dated 31 March 2021 (
PDS) for the Scheme, Omni Bridgeway Investment Management Limited (ACN 642 086 593 and AFSL No. 524023) (Issuer) and Piper Alderman (
Lawyers) determined that the Class Action would be commenced on an ‘open’ basis. Accordingly, the proceedings were filed on behalf of all of the New Zealand Claimants (as that term is defined in the PDS).
What this means is that all of the New Zealand Claimants are now included in the class covered by the Class Action unless they take steps to positively opt out of the proceedings by giving notice in writing to the Court using the relevant Opt Out Notice at any time prior to the deadline to opt out which will in due course be specified by the Court (“
Opt Out Deadline”).
For the open Class Action, members of the class who do not positively apply to become a member of the Scheme will be treated as “Passive Members” of the Scheme. Passive Members should note that in the event that the proceedings are successful and a Resolution Sum (as that term is defined in the PDS) is received, they may have their share of any Resolution Sum deemed by Court order as being contributed to, and distributed according to the Constitution of, the Scheme. That is, it is possible that the Passive Member’s share of the Resolution Sum will still be treated as part of the Scheme.
The Issuer encourages all Passive Members who do not wish to opt out of the Class Action to complete an Application Form so that the Issuer can include them as a registered member of the Scheme and ensure that any distribution of the Resolution Sum to which they may be entitled is properly paid to them. Such New Zealand Claimants do not have to pay anything to be a Passive Member, or to convert their Passive Membership to being treated as a registered member of the Scheme.
If a New Zealand Claimant wishes to withdraw from the Scheme during or after the cooling-off period, they must also opt out of the Class Action at the same time. If a Claimant withdraws from the Scheme, they will not be paid anything. Further details in relation to opting out of the Class Action and withdrawing from the Scheme are set out in sections 15, 18 and 19 of the PDS. Because the proceedings have been filed on behalf of all of the New Zealand Claimants (subject to any New Zealand Claimant positively opting out as set out above) there is no longer a deadline following which Application Forms will not be processed. The Issuer will continue to process Application Forms received by New Zealand Claimants unless and until:
- any Opt Out Deadline that may be set by the court or;
- The Scheme is wound up in accordance with the terms of the Constitution of the Scheme.
If either of these events is likely to occur, a further update will be posted to the website.
This is an Australian open class representative proceeding brought on behalf of the Body Corporate and 199 unit owners of the Victopia Apartments in Auckland, NZ who apply to join the class (
Claimants) against the insurers of Brookfield Multiplex Constructions (NZ) Limited (in liquidation) (
BMX).
The class action is being funded and run as a managed investment scheme (the
Scheme) in compliance with new funded class action regulations introduced by the Australian government in 2020.
The class action is being run by Piper Alderman.
Further details are set out in The Certain Underwriters at Lloyds Group Litigation Funding Scheme Product Disclosure Statement (PDS) which is now available and can be accessed using the link below or by contacting Omni Bridgeway using the details below. If you decide to join having carefully read the PDS, please sign-up by completing and submitting an electronic or paper Application Form.
Applications to participate in the Scheme will only be accepted on the Application Form contained in or accompanying the PDS.
Background
In 2012, the Body Corporates and 199 unit owners of the Victopia Apartments made claims against BMX, KNZ International Co Limited (
KNZ), Auckland Council and other defendants in a proceeding commenced in the NZ High Court (the
NZ Proceeding). Those claims concerned building defects (cladding, balconies, podium and passive fire protection) at the Victopia Apartments, which is a unit complex at 135 Victoria Street West in Auckland. BMX was the builder of the Victopia Apartments, KNZ was the developer and Auckland Council was the certifying authority.
In 2017, the Claimants obtained a NZ judgment against each of BMX and KNZ in the sum of NZD53,124,719.76.
This class action was commenced on 5 August 2021 on behalf of the Claimants in the NSW Supreme Court against BMX’s insurers under the
Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) (
Act), to recover the amount of NZD $23,099,011 (plus interest), which is owed by BMX to the Claimants and remains unpaid (
AU Proceeding).
Causes of Action
This is an indemnity dispute which concerns the PI Policy issued to Brookfield Multiplex Pty Ltd and its subsidiaries, including BMX. Further details are set out in the PDS which is now available and can be accessed using the link below or by contacting Omni Bridgeway using the details below. The PDS makes reference to notices which may appear on our website from time to time. Please consider these notices alongside the PDS.
How much will it cost to be part of the class action?
The costs of running the Class Action will be partly met by Omni Bridgeway. In return, Omni Bridgeway will be entitled to a share of any amount awarded by the Court or any amount the Respondent agrees to pay to settle the Class Action - please see the PDS for full details of the funding and the associated fees.
If you elect to take advantage of the funding offered by Omni Bridgeway, you will need to be comfortable with the relationship between the Scheme’s responsible entity, Omni Bridgeway, and the lawyers. Please note that with the recent filing of the proceeding on an “open” rather than “closed” basis, you will need to take positive steps to opt out of the proceedings if you do not wish to take part.
How can affected group members participate in the class action?
If you are eligible to join the Class Action, you can sign up to be a funded member of the Class Action by applying to be a member of the Scheme by
completing and returning the Application Form which is set out in the PDS.
A copy of the PDS can be accessed here and should be read in its entirety prior to submitting an application. You can also complete and submit an electronic Application Form by clicking on the ‘sign up’ link below. If you do not return an Application Form, and you are an New Zealand Claimant, you will still be included in the Class Action unless you take or have taken positive steps to opt out. Further details are set out in the PDS at section 18.
If your application to become a member of the Scheme is accepted, you will be able to access updates about the progress of litigation on this website with unique log on details that will be issued to you once your application to become a member of the Scheme has been accepted.
You should consider with or without the assistance of your professional advisers whether or not to participate in the litigation to which the Product Disclosure Statement relates.
If you have any queries or if you would like to
request a copy of the Constitution, you can contact the Omni Bridgeway Client Liaison Team by email
[email protected] or free call
1800 016 464.