By and -

Snapshot

  • The High Court in Timbercorp Finance Pty Ltd (in liquidation) v Collins; Timbercorp Finance Pty Ltd (in liquidation) v Tomes [2016] HCA 44, has dismissed two appeals from decisions of the Victorian Supreme Court of Appeal.
  • The decisions considered whether the respondents were precluded from raising defences because (a) they were group members in representative proceedings, and were Anshun estopped from doing so; or (b) they were privies of the lead plaintiff.
  • The decisions highlight that unreasonableness will not be lightly found, but that the importance of carefully worded opt out notices remains.

The doctrine of Anshun estoppel prevents a party from making a claim which should have been pursued in earlier proceedings (Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45). On 9 November 2016, the High Court in Timbercorp Finance Pty Ltd (in liquidation) v Collins; Timbercorp Finance Pty Ltd (in liquidation) v Tomes [2016] HCA 44 (‘Timbercorp HCA Decision’) dismissed two appeals from the Victorian Supreme Court of Appeal’s decision in Timbercorp Finance Pty Ltd (in liq) v Collins and Tomes [2016] VSCA 128. The decisions considered whether the respondents were precluded from raising defences because (a) they were group members in representative proceedings, and were Anshun estopped from doing so; or (b) they were privies of the lead plaintiff. The decisions highlight that a finding of unreasonableness will not be made lightly, but that the importance of carefully worded opt out notices remains.

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