The Court of Appeal in Simons & ors v ANZ & ASB [2024] NZCA 330 has allowed the class action against ANZ and ASB to proceed on an opt out basis for the banks’ failure(s) to comply with the Credit Contracts and Consumers Finance Act 2003. It confirmed the exclusion from the class of those borrowers whose claims were statute barred. The Court also made a common fund order now that enables the litigation funders to get certainty of a return at the start of opt out class action proceedings. This is a first for NZ. A CFO imposes the payment terms agreed between the litigation funder and representative plaintiffs on all class members, obliging the representative party and all members of the class to bear a specified proportionate share of the money that will be paid to the litigation funder from the proceeds recovered in the proceedings. The litigation funders entitlement is a first priority on any monies received. Where CFOs are made, the court retains a supervisory role to
ensure the interests of justice are upheld between the litigation funder and those who benefit from the litigation.
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