What is the case about?

From about 2006 to 2009, Great Southern Managers Australia Limited operated agricultural managed investment schemes.

Interests in the schemes were sold through Great Southern Managers or independent financial advisers.

Finance was made available through Great Southern Finance Pty Limited (GSF) or ABL Nominees Pty Limited (ABLN) to acquire interests in the schemes.

Investors believed that they entered into loans with GSF or ABLN to fund the acquisition of their interests in the schemes.

In 2009, the Great Southern Group Companies were placed into liquidation.

In 2010, a Victorian law firm commenced a class action against Bendigo and Adelaide Bank for misleading and deceptive conduct in relation to product disclosure statements relating to the schemes.  This was known as the ‘Great Southern Class Action’.

On 11 December 2014, the Supreme Court of Victoria approved the settlement of the Great Southern Class Action.  As part of the settlement, the Court approved a Deed of Settlement.  The Deed of settlement contained, among other things, an acknowledgement on behalf of the ‘group members’ in the Great Southern Class Action that all loan deeds in relation to the schemes were ‘valid and binding’.

From about January 2015, Bendigo and Adelaide Bank (BABL) began to make demands for the repayment of loans on the basis that they were ‘group members’ and as such had acknowledged that the loan deeds were ‘valid and binding’.

As a result of BABL’s demands (either through BABL’s recovery department or its external lawyers), borrowers repaid their loans. 

EQ Legal takes the view that the demands for repayment were misleading or deceptive because ‘borrowers’ could only be ‘group members’ if the loans were valid.

A number of recent decisions in New South Wales, Victoria and South Australia support this view because the Courts have consistently found that loan deeds were invalid because they were not properly executed, the bank could not prove that money was actually advanced under the loan and the bank could not prove that the loans were validly assigned.

In those circumstances, there are reasonable grounds to conclude that anyone who repaid a loan as a result of a representation by BABL that they were a ‘group member’ in the Great Southern Class Action may be entitled to recover the amounts they repaid after 11 December 2014.

You are eligible to participate in the BABL group action if:

  • you invested in a 'Great Southern' scheme between 2004 and 2009; and
  • you borrowed money to make your investment in a 'Great Southern' scheme; and
  • after about 11 December 2014, BABL or their lawyers demanded repayment of any outstanding loans from you on the basis that you were a 'group member' in the Great Southern Class Action; and 
  • you made loan repayments to BABL after receiving those demands from BABL or their lawyers (either as a borrower or guarantor); this includes if you are still repaying loans to BABL.

Unfortunately, you will not be eligible if you entered into a Deed of Settlement with BABL in 2015 or later.

When the enrolment phase begins, an email will be sent to existing registrants inviting them to enrol and set a password. New registrants will be asked to enrol immediately. You can then manage your claims online. 


If you have not registered, you will need to do this before being able to enrol. After you have finished the registration process, you will be prompted to enrol. Follow the guide to set your password. 


Enrolment will be in two phases:

  • the first phase is to submit details of each Entity that will be a member of the Group Action and to pay the enrolment fee of $3,300 (inclusive of GST) for each Entity
  • the second phase will be to collect details about each of the eligible BABL loans.


The Entity is the name used on the loan documents to identify the borrower and could be an individual, joint individuals, a superannuation fund, a discretionary trust or a company. An Entity could have multiple eligible loans, but they must all have the same name on the loan document. A separate Conditional Costs Agreement is required for each entity.

Example Entity Names:

  • Mr John Smith
  • Mr John Smith and Ms Janet Smith
  • Smith Family Superfund
  • Smith Family Trust
  • Smith & Co ABN 12 345 678 900

Enrolment steps:

  1. Set up a secure password
  2. Create one or more Entities
  3. Submit each Entity and digitally sign a Conditional Costs Agreement with EQ Legal Pty Limited
  4. Receive a payment request for each Entity
  5. Transfer the enrolment fee in one or more payments for each Entity to the trust account of EQ Legal Pty Limited

You can view an enrolment video here: Vimeo BABL Group Action Enrolment

Currently enrolments are set to close on 4th September 2020. However, this date is subject to the number of enrolments and other factors. You will be notified when enrolments close.

After enrolment you will be able to view a sample copy of the Conditional Costs Agreement on the Members Page.

The Members Page is available after you have enrolled but can be viewed before you have signed the Conditional Costs Agreement or created Entities for submission.

Yes, however, you must have the authorisation of the person on whose behalf you are accepting.  By signing the Conditional Costs Agreement, you confirm that you are authorised to do so.

You will be able to withdraw from the group action at anytime prior to your claim being filed in court. However, any payments that you have made will not be refunded and you will not receive any payment if our action is successful.

After enrolling, you can manage your Entities online. Log into your account and go to the My Claims section. Here, you can add or edit your Entities.


To create a new entity, you are required provide the following information:

  • Entity name (as it appears in the Loan document)
  • Estimated Claim Value (the estimated repayment value of all eligible loans made in the name of the Entity) 

For those members who are still paying eligible loans, we ask you to provide an Estimate Claim Value based on an approximate value of the loans when fully paid.


You will be asked to sign a Conditional Costs Agreement for each entity. It is important that you are authorized to sign this agreement on behalf of all persons involved. You will need to provide written proof of this at a later stage (Power of Attorney, Will, Trust deed, etc.). If you do not have permission, your claim will become invalid. After signing the Cost Agreement, a statement will be issued and sent to you with an Entity ID . Make sure to use this ID when making your payments. 


You can edit both the name and the claim value at any time before our case is submitted to the court.
 

Yes, the enrolment portal will save the information and when ready, you can return and submit the claim. 

You are able to edit your entity information prior to our claim being filed.

If you have made a mistake and are unable to edit it, please contact our team on 02 8304 9304 or email enquiries@bablgroupaction.com

If the name of your entity and the name on your loan do not match, then it is void and another entity with a matching loan name will need to be created. This also means you will incur another cost of $3,300 to enrol this entity. You do not have to enrol all entities and loans you have; it is at your discretion how many you enrol.

The safest course is to enrol all entities that are eligible, otherwise we believe there is a significant risk that you will not be able to recover for the other entities at a later time.  There are a number of reasons for this.  First, the claims of the other entities may become statute barred.  Secondly, if there is a judgment in favour of the group, it is unlikely to bind entities that are not members of the group, meaning that your other entities would have to start another set of proceedings which may be statute barred and which will likely cost more.  Thirdly, if there is a settlement of the Group Action, it may preclude your related entities from taking any further action.  For these reasons, we recommend enrolling all your eligible entities.

A Costs Agreement is a legally binding document that is required to be signed for every claim that has the possibility of payment if our action is successful. 

No, you are required to make individual payments for each entity. Please use the individual Entity ID reference when making the payments. If you include several entity fees in one payment, we will not be able to process this payment.

Yes, however, you won’t be entitled to a refund of any monies that you have previously paid. This is listed in our Conditional Costs Agreement.

You can contact BABL on 1300 236 344 and ask for a copy of your loan agreement.

For those members who are still paying eligible loans, we ask you to provide an Estimated Claim Value based on an approximate value of the loans when fully paid.

You can contact BABL on 1300 236 344 and request that information

If you repaid loans to BABL prior to December 2014, unfortunately you are not eligible

Our preferred method of payment is via a bank transfer. Please ensure you use our reference in the description field of the payment. Do not combine payments for different Entities.

Account Name: EQ Legal Pty Limited Law Practice Trust Account
Account Number: 488 684 951
BSB: 112 879
Reference/description:  <please enter your Entity ID>

 

If you wish to pay by other means, please ensure that our reference is clearly displayed. We cannot accept payment by credit or debit card.


A receipt will be provided for each payment when the funds have cleared.


All payments are made to a Law Practice Trust Account subject to the Uniform Legal Profession Law (NSW). The Enrolment Fee is based on the number of expected Group Members and the estimate of litigation costs and insurance to prosecute the Group Action.  The basis on which the Enrolment Fee will be applied is fully set out in the Conditional Costs Agreement.

 
The Group will be a closed group, and no further registrations accepted after the proceedings are filed in Court. If we do not receive adequate funds to cover the estimated fees, all payments will be refunded in accordance with the terms of the Conditional Costs Agreement.


All Group Members must pay the Enrolment Fee in full, otherwise they will not be able to participate in the group action. 


Once EQ Legal Pty Limited determines, in its sole discretion, that the proceedings are commercially viable, Enrolment Fees will not be refundable.
 

You will be able to make your payment via an online back transfer.


It is not advised that you make cash payments or cheque payments. However, if this is your only option, please ensure that you use your reference number when making payment or we will be unable to allocate the funds to your correct claim.  


We cannot accept payments by credit or debit cards.

If your company was/is de-registered it is not a valid entity. If you intend on enrolling under a de-registered company, you will need to re-register your company.

EQ Legal is able to assist with this, however it will incur an additional cost. If you have any questions regarding re-registering your company please contact us on 02 9159 0590

You should obtain independent legal advice about this, because circumstances may vary.

Please contact us on 02 9159 0590 if you have a current and ongoing claim in a different setting. 

If one action is successful before the other, the amount of payment you receive will be deducted off of your claim in the other action. You will not receive double compensation, nor will you be disadvantaged if success in one action occurs.

If one action is successful before the other, the amount of payment you receive will be deducted off of your claim in the other action. You will not receive double compensation, nor will you be disadvantaged if success in one action occurs.

You can potentially recover all loan repayments you made to BABL after 11 December 2014 in relation to a Great Southern scheme, plus interest.

Theoretically, yes.  However calculation of individual loss of opportunity will not be done at the ‘group’ stage.  It will be done after the group stage on an individual basis, subject to the Court’s approval. 

Generally, no. The Court will only award the amounts repaid plus interest, as set out above.

BABL had a special division set up to recover loan funds. This was called Great Southern or GS Recoveries. 

They also had a number of law firms acting for them including Turks, Results Legal, Fisher Jefferies, K&L Gates and Curwoods.  If you did not repay any loans before about June 2015, it is likely that you would have received a letter from a law firm demanding repayment.

The most efficient way to run the case is likely to be as a closed group action.

A class action is a type of legal case where a 'lead applicant' represents the interests of 'group members' who have claims against the same person arising out of the same, similar or related circumstances.

This procedure allows 'common issues' to be determined by the Court.  Those determinations are then applied to all group members, which usually results in substantial cost savings and greater returns to group members.

The action will likely be run as a 'closed group action'.

A 'closed group' is a specific group of people who have elected to be involved in a class action.  It means that members who contribute towards the prosecution of the class action are those who benefit from it and to the extent that it is possible, ensures that 'free riders' (i.e., those who do not make a contribution) do not benefit.

A lead applicant is the named representative in the court proceedings.

A group member is a member of the group represented by the lead applicant.  A group member is not named as a party to the proceedings and generally has no active role in the proceedings.  Group members are also not liable for adverse costs (i.e., not liable to pay the other side’s legal costs) if the case is unsuccessful.

The Great Southern Class Action was a series of class actions commenced by a Victorian law firm against Bendigo and Adelaide Bank and others in about 2010.  In the Great Southern Class Action, it was alleged that the Great Southern Parties had made misleading statements in Product Disclosure Statements and that those Product Disclosure Statements were therefore defective. On that basis, orders were sought against Bendigo and Adelaide Bank seeking to declare the loan deeds void and recover money paid. The Great Southern Class Action would have been unsuccessful, but was settled in December 2014.

In the Great Southern Class Action, a 'group member' was defined as a person who acquired interests in Great Southern investment schemes and took out a loan for the purpose of acquiring those interests.  

In other words, you can only have been a 'group member' if you had a valid loan.  Recent court decisions have shown the loans to have been invalid, so even if you believed or were led to believe that you were a group member in the Great Southern Class Action, this may not be correct.

There are recent court decisions in New South Wales, Victoria and South Australia which have found that for a number of technical reasons, the loans taken out by borrowers/growers were invalid.  This is because the bank could not prove that the loan deeds were validly executed, that the bank could not prove that there was actually a loan advanced and could not prove that there was a valid assignment of the loans to Bendigo and Adelaide Bank.

Since the conclusion of the Great Southern Class Action in 2014, there have been numerous challenges by 'borrowers' in relation to Great Southern 'loans'.  It is only as a result of these cases, the last of which was decided in February 2020, that it has been apparent that there is a viable claim for Great Southern investors against BABL to recover money they have repaid on the basis that the loan deeds are invalid.

The registration cost will be $3,300 per entity.  This can be paid either as:

•    one upfront payment of $3,300; or 

•    three monthly instalments of $1,100.

Unfortunately, no.  This would not be fair to other members in the group and it increases the administrative costs.

We are not accepting payments by credit card.  We recommend that you speak to your bank or your financial adviser about payment options.

The registration cost will be applied toward the payment of

•    barrister’s fees;
•    insurance costs (see below in relation to ‘ATE Insurance’);
•    court costs;
•    other third party providers including management of the group, communications with the group and document management.
•    solicitor’s fees;
•    other costs of and incidental to running the case.

The costs of running the group action will be significant and will include:

•    barrister’s fees;
•    insurance costs (see below in relation to ‘ATE Insurance’);
•    court costs;
•    other third party providers including management of the group, communications with the group and document management.
•    solicitor’s fees.

These costs are commonly referred to as ‘litigation costs’

The registration cost of $3,300 is relatively small compared to the average loan size and with strength in numbers in the group, provides the best opportunity to keep costs as low as possible for the group members and to maximise the returns.

Further, ‘no win – no fee’ arrangements often result in a higher cost to the group members at the conclusion of the proceedings, which can result in a reduction in the amount recovered at the end of the day.

The costs will be capped for each participant.  If there are any overruns, these will only be recovered with the approval of the Court. If the actual costs exceed the capped amount, the additional costs will only be payable on a successful outcome and with the approval of the Court.  If the case is unsuccessful, there will be no additional cost to the group members.

On a successful outcome, we expect that group members will be entitled to recover all their enrolment fees.  If the case is unsuccessful, we expect that any surplus funds remaining in the trust account (if any) will be returned to group members on a pro rata basis.  Either way, this is also likely to be subject to the Court’s approval.

The registration costs will be held on trust by EQ Legal and will be subject to the New South Wales Uniform Legal Profession Law rules.

The litigation costs will be payable from the trust account only if the case proceeds.

The terms on which trust funds can be used to pay the litigation costs will be subject to a costs agreement which will be provided to you at the enrolment stage.

If the case does not proceed, your registration fee will be refunded.

You need to register for the number of loans you originally had.  This is because the claim is based on your original loans.  

You need to register for the number of people/entities that originally had loans.  This is because the claim is based on your original loans.  

For example, if you and your partner originally had loans that were consolidated into a joint loan, you will need to register separately for you and your partner (because you originally had separate loans).  There will also be a separate enrolment fee payable for you and your partner (because the loans were originally in different names).

We believe that given the nature of the case, there is likely to be a better return to participants without the involvement of a litigation funder.

Litigation funders typically take 20% to 40% of the settlement or judgment sum, plus all  legal fees and disbursements they have paid out.  

Whilst these costs are not payable upfront, they are payable on a successful outcome at the end of the case and invariably result in a much lower return.

Recent statistics published by the Australian Law Reform Commission found that when litigation funders are involved in a class action, the median return to class members was 51 per cent, compared to 85 per cent when a funder was not involved.

Additionally, there are proposed regulatory changes to be imposed on litigation funders in the coming months, which are likely to further increase compliance costs for class members, which will almost certainly be passed on to class members and may further reduce returns.

There are also strict deadlines with this case and in all the circumstances we feel that a “self funded” group creates the best opportunity for class members to maximise their returns.
 

At this stage, you do not need to provide any documents.

After the enrollment stage, we will ask you to provide at least the following documents. 

  • a copy of your application for term finance;
  • a copy of your loan deed;
  • a copy of any demand from BABL or its lawyers;
  • evidence of the amount you repaid after 11 December 2014.

Don’t worry.  When you register, just provide us with your contact details, we can help you with this during the enrolment phase.

You can ring BABL on 1300 BENDIGO (1300 236 344) and they will provide you with the details.

We recommend that you contact us, or seek independent legal advice

Generally speaking you should always keep paying unless you have the express written agreement of the bank to stop paying.  If you are considering stopping your repayments, we recommend that you first obtain independent legal advice.

During the series of cases where 'borrowers' have challenged the 'loans' and have not admitted being group members in the Great Southern Class Action, the bank has consistently been unable to prove that the loans were valid.

A 'win' is a successful outcome that is a settlement approved by the Court or a judgment handed down by the Court.

If you win, we expect that you will share in the settlement or judgment sum on a pro rata basis, based on the amount that you repaid to BABL after December 2014.However, you may not recover that amount in full. If the Court makes a costs order or the bank agrees to pay the costs, you may also be entitled to recover some or all of any contribution you make towards the litigation costs.

If you are a 'group member' (as opposed to a lead applicant), in the event that the case is unsuccessful, you will lose your contribution towards the litigation costs.

As a group member, you are not liable for any adverse costs orders, other than in exceptional circumstances.  At present, we do not consider that there could be any exceptional circumstances warranting the award of a costs order against you.

On a successful outcome, we expect that group members will be entitled to recover all their enrolment fees.  If the case is unsuccessful, we expect that any surplus funds remaining in the trust account (if any) will be returned to group members on a pro rata basis.  Either way, this is also likely to be subject to the Court’s approval.

We are taking expressions of interest from persons who wish to be lead applicants.  If you wish to express your interest, please contact us directly.

A lead applicant is named in the case and the lead applicant's name forms part of the public record.

Additionally, the lead applicant is liable for an 'adverse costs order'.

The general rule in litigation in Australia is that the losing party must pay the winning party's legal costs and disbursements relating to the case.

We are in the process of seeking insurance against an 'adverse costs order' for the lead applicant(s) in this case.  This is known as 'after the event' insurance, or 'ATE insurance'.

There is a premium payable for ATE insurance.  Part of each participant's contribution to the case will be used to pay the premium for the ATE insurance.

You will not be eligible if you entered into a Settlement Deed with BABL in 2015 or later.

24 June 2020:           Registrations open

14 August 2020:        Registration and Enrolment open

30 October 2020       Enrolments close

Unfortunately, if you are an undischarged bankrupt, even in relation to this loan, you cannot participate in the BABL Class Action.  However, we suggest that you contact your trustee in bankruptcy to find out what, if any, options might be available to you, or obtain independent legal advice relating to your particular circumstances.

You will need to obtain specific advice from your trustee in bankruptcy or obtain independent legal advice, as everyone’s circumstances are different.  You can contact your own lawyer or EQ Legal about this.  The cost of any advice is not included in the enrolment fee and you will have to pay for this advice separately.

This may depend on your particular circumstances.  We suggest that you obtain independent legal advice relating to your particular circumstances.