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In this decision, the Court found that calculating aggregate damages prior to trial would not be efficient and could be premature in a situation where the composition of class members remains unknown. 

The applicant in this proceeding was a member of The Universal Superannuation Fund Scheme (TUSS) prior to 1 July 2016 and a member of the MLC Super Fund after 1 July 2016. The claim relates to allegations concerning the respondent’s decision to maintain grandfathered commission arrangements during and after the transfer of members from TUSS to the MLC Super Fund.

In this judgment Markovic J considered the applicant’s submission that the claim for aggregate damages should be determined at the initial trial, which was advanced on several grounds (outlined at [8]). The applicant argued inter alia that the Court had power to make an award of aggregate damages and that Pt IVA and s 37M of the Federal Court of Australia Act 1976 (Cth) (Act) support the resolution of as many issues as possible as part of the initial trial.

Her Honour noted that the Court was empowered by s 33Z(1)(f) of the Act to award aggregate damages and cited with approval a recent decision of Lee J which held that such an award was available at the initial trial (at [14]-[18]).

However, her Honour held that the Court’s discretion to do so should not be exercised in the present case for the following reasons:

  • calculating loss and damage ought to only be undertaken following determination of any prior issues that might affect that calculation, including the upshot of the respondent’s pleading that the appropriate order for the Court to make in the event it is ultimately found liable for misapplying assets would be to make good the breach rather than an award of damages;

  • until an outstanding question concerning the distinction between vested and non-vested members of the MLC Super Fund was determined, the composition of the class members in respect of whom an award of aggregate damages could be made is not known and it would therefore be premature to have experts attempt to determine the quantum of aggregate damages; and

  • in circumstances where the applicant had made material amendments to his liability case and introduced the concept of different classes of beneficiaries, it would not be efficient to bring forward the question of aggregate damages.


Brady v NULIS Nominees (Australia) Ltd in its capacity as trustee of the MLC Super Fund (No 2) [2021] FCA 1517

Federal Court of Australia, Markovic J, 
3 December 2021

Applicant’s Solicitors: William Roberts Lawyers;
Respondent’s Solicitors: King & Wood Mallesons;
Applicant’s Funder: Omni Bridgeway Ltd

Austlii Link: Available here

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