Payment of compensation
From the outset, on your behalf, the class action has sought to recover whatever losses are possible from the flood event. The aim has always been to put money back in your hands so that you can put it to good use, even though we know it would never serve to fully replace what you have lost.
Fortunately, we are now in the process of assessing claims. Once claims are assessed we can begin making payments to you. There are a range of factors that need to be accounted for in determining your final pay-out.
These factors (listed below) consider the third-party funding agreements you agreed to in order for the case to receive the financial backing it needed. The payment will also reflect the fact that the settlement is with only two of the three defendants who are responsible for half of the liability. As things presently stand, the New South Wales Court of Appeal has found that the other defendant, Seqwater, is not responsible for any losses.
The compensation payable to you will not be the full value of your assessed losses. Your losses will be adjusted to take account of the following factors:
- The settlement is with Sunwater and the State of Queensland who were held to be responsible for half of the liability in the case.
- Like all settlements, it reflects a compromise on the full entitlement.
- The counterfactual flooding scenario: some claimants’ losses will be reduced to reflect the fact that not all of the loss was caused by the operation of the dams. In some cases, properties would have flooded anyway, for example due to rain which fell downstream of the dams, or where flooding would have occurred at the property due to the elevation and topography of the property and surrounding land, and/or the way other rivers or waterways in the vicinity of the property flooded.
- Court-approved legal costs, including trial and trial preparation costs, appeal costs, settlement administration costs and any adverse costs ordered to be paid to Seqwater because of its success in the Court of Appeal. Court-approved legal costs are discussed further below.
- You and/or your insurer have agreed to pay a percentage of the compensation that you recover to the litigation funder, Omni Bridgeway. These costs include project costs and project management fees and funding commissions. Funding costs are discussed further below.
Each claimant, and/or their insurer, entered into a litigation funding agreement with Omni Bridgeway. Under those agreements, in return for Omni Bridgeway financing the litigation, claimants are required to pay a portion of their recovery to Omni Bridgeway. Funding costs include funding commission, project costs and project management fees, as defined in your funding agreement.
When approving the settlement, the Court observed that the returns to funders need to take account of the risk that a costs order would be made against them, and unless litigation funders and lawyers were willing to bear both the financial cost of bringing such proceedings and the risk of defeat, the rights of claimants to obtain compensation for losses caused by the negligence of others would be, in many cases, worthless.
The Court considered the costs and fees to be paid from the settlement sum in this case to be reasonable and commensurate with the work done and the risk undertaken.
If you have any questions regarding the funding commission, please contact Omni Bridgeway on 1800 809 600.
Court-approved legal costs
Before distributing money to claimants, Maurice Blackburn will deduct from the settlement sum court-approved legal costs for the conduct of the case from 2011 to date, including costs of the trial and trial preparation, appeal, settlement administration and any adverse legal costs which are ordered to be paid to Seqwater because of its success in the appeal.
The legal costs in this litigation reflect that the Queensland Floods Class Action trial was one of the largest and most complex class action trials held in Australia to date. The case was highly contested by three well-resourced defendants and was a significant undertaking. As at early 2022, the case has settled with two of the three defendants and Seqwater has won its appeal in the Court of Appeal meaning that as things presently stand, Seqwater is not responsible for any losses caused by the flood. In addition, if Seqwater’s victory is not overturned by the High Court of Australia, claimants will regrettably be required to pay a portion of Seqwater’s legal costs from the settlement sum.
At the settlement hearing in May 2021, Maurice Blackburn presented evidence to the New South Wales Supreme Court about the legal costs. The court also considered evidence from an independent assessor about costs. After carefully considering this evidence, the court made orders approving the deduction of what it considered to be fair and reasonable legal costs from the settlement amount. Of the amount approved, approximately 56% comprised Maurice Blackburn costs and 44% comprised amounts paid to third parties such as court costs, barristers fees and expert fees.
It is important to note that we can only deduct costs which the court has specifically examined and approved as being fair and reasonable. In making this decision the court has regard to evidence from an independent costs’ assessor.
Settlement administration costs
Settlement administration costs cover the infrastructure and processes required to manage, assess and make payments in respect of the approximately 7,700 claims registered by claimants in this class action and to distribute money for eligible assessed losses. These costs include Maurice Blackburn’s costs as administrator in establishing and overseeing the systems and processes required in the settlement administration and the costs charged by third-parties which are necessary to assess the value of the claims (for example, loss assessor fees).
Settlement administration costs must be approved by the court as reasonable and appropriate before they can be deducted from the settlement sum.
How claimants will be notified of their assessment
Once we receive all of the information we require, your claim will be assigned to an independent loss assessor (Assessor). The Assessor will ask you to complete an online questionnaire in order to assess the losses for your claim.
Once your claim has been assessed, you will be issued with a Provisional Notice of Assessment and/or a Final Notice of Assessment, depending on the assessment option you choose. Learn more about the Notices of Assessment.
Fast Track Assessments
The Fast Track Assessment option allows eligible claimants to bypass much of the standard loss assessment process and receive interim payments sooner. This form of assessment involves only assessing building losses (for landlords and owner-occupiers) or contents losses (for tenants) and applying a court-approved multiplier to the assessed amount to arrive at an overall assessment of the losses sustained at the address.
Once your claim has been assessed, you will be issued with a Final Notice of Assessment.
Residential and Commercial Assessments (non-Fast Track)
Once your claim has been assessed, you will first be issued with a Provisional Notice of Assessment and then a Final Notice of Assessment.
Provisional Notice of Assessment
A Provisional Notice of Assessment is a notice which sets out the Assessor’s interim assessment of the claimant’s assessed loss and adjusted loss, including the reasons for the assessments. The intention of this notice is to allow the claimant an opportunity to correct any error or omission at an early stage in order to avoid the need to go through a lengthy and potentially costly review process.
Final Notice of Assessment
A Final Notice of Assessment is a notice which sets out the claimant’s assessed loss and adjusted loss, including the reasons for the assessments. Unless a claimant chooses to request a review, the decision of the Assessor will be final and binding.
Example of how payments are determined
|Losses relevant to settlement||This is the 50% share of the assessed losses which were covered by the settlement with Sunwater and the State of Queensland, after adjusting for losses which would have occurred even if the dam had been operated differently.|
|Indicative Entitlement before Funding Commission||The estimated range of compensation for losses assessed in the Notice of Assessment once court-approved fees are deducted.|
|Indicative Entitlement after Funding Commission||The estimated compensation payable to claimant(s) for the losses assessed in the Notice of Assessment once funding commissions owed by the claimant(s) are deducted.*|
* The actual funding commission applicable to individual claims will be calculated after all claims have been assessed and final entitlements have been calculated. Please note that the funding commission applicable to individual claims may be less than the estimate incorporated into this calculation. For any questions regarding the funding commission, please contact Omni Bridgeway on 1800 809 600.
How payments are distributed
Once your losses have been assessed and adjusted, you will receive your payment in two instalments: Interim and Final.
Your compensation is split into these two payments because the final amount will not be confirmed until all claims have been assessed and this is a process which will take some time. We will make an interim payment in order to get you some of your compensation as soon as possible.
Once a sufficient number of claims have been assessed and adjusted, Maurice Blackburn will commence making interim payments to eligible claimants.
Claimants who elected to undergo a Fast Track Assessment will receive their interim payments first, followed by claimants who used the standard loss assessment process.
When you receive your interim payment, you will also be provided with an estimate of your overall compensation and what to expect in your final payment.
Final payments can only be paid after all eligible claims are assessed, which will take some time. When you receive your final payment, you will be provided with information explaining how the final amount has been determined.
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We have lawyers who specialise in a range of legal claims who travel to Tasmania. If you need a lawyer in Hobart, Launceston or elsewhere in Tasmania, please call us on 1800 675 346.