SurfStitch Class Action Update

SurfStitch Class Action Update


Proceedings 2017/193375 & 2017/347082

13 December 2019

On 12 November 2019 the Supreme Court of New South Wales ordered the Plaintiffs in the SurfStitch Class Actions to file all their supporting material in respect of the Settlement Approval Application.

Due to delays associated with various evidence comprising that material, the 22 November deadline was postponed by the Court, with all parties’ consent, to 26 November 2019.

On 11 December 2019, the matter was listed for directions before the Honourable Justice Ball and the Settlement Approval hearing listed for 16 December adjourned for further directions to 7 February 2020. The adjournment was sought and granted for a number of factors including:

(a)        The proposed sale by Alceon of 50.1% of EziBuy to NoniB, the shareholders’ meeting of which is scheduled for the 23 December. The proposed sale may impact the value of the convertible notes available under the DoCAs the subject of the proposed settlement. We are uncertain as to what value will be ascribed, and are awaiting further clarity from the Deed Administrators who are in private discussions with Acleon Retail HoldCo Pty Ltd (the parent company of EziBuy) about same; and

(b)        The High Court decision in the appeal of BMW Australia Ltd v Brewster and Westpac Banking Corporation v Lenthall [2019] HCA 45 on the availability of Common Fund Orders. Due to the changed class action landscape, the Plaintiffs require time to consider this decision and its implications (if any) for the proposed settlement.

The deadline for registering to participate in the settlement, opting out, or objecting to the settlement was and remains 4pm AEDT on 11 December 2019 (Participation Deadline). However, the plaintiffs may seek an extension from the Court in due course. We therefore encourage the return of Annexure A forms to our firm in the meantime.

Please review our home page, and previous updates for more details about the SurfStitch Class Actions. If you fit the description of a ‘group member’, you should review Annexure D immediately, and decide what to do.

Should you have any queries, please contact a member of our team.

Glenn McGowan QC

Partner & Chief Counsel

Rebecca Di Rago


This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.