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Attention all Group Members

Gadens Lawyers is presently arranging for payment of the settlement funds to group members in the SurfStitch Class Action in respect of BOTH the TW McConnell action (NSWSC 2017/193375) and the Nakali action (NSWSC 2017/347082).

We will be contacting group members in the coming days to confirm payment arrangements.  Group members are encouraged to have their identification details available, including HIN number.

Please submit any queries you may have in writing to: vic-surfstitch@gadens.com.

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Surfstitch Class Action – Press Release 19 February 2021

IMPORTANT NOTICE TO GROUP MEMBERS

Proceedings 2017/193375 & 2017/347082

22 February 2021

On 19 February 2021 the Supreme Court of NSW approved the settlement in the Surfstitch class action. Full text can be found here. Final orders are yet to be made.

The terms of the settlement are complex and have a number of elements, including cash from the insurer ($6.5m), cash from the Administrator ($1.81m) and 12 million convertible notes from Alceon Retail Hold Co Pty Ltd (part of the group which proposed the Deeds of Company Arrangement).

The Court found the settlement was reasonable and the best that could be achieved.

The Court also approved total costs and funding commission capped at $6.5m.

The Court’s judgment made a number of things clear –

  • the case was one of the most difficult and complex cases in class action history – the first to grapple with the interaction between a class action settlement deed and Deeds of Company Arrangement, joining an insurer, whilst dealing with a competing class action and separate representation for two funders. (6 parties);
  • settlement was approved as reasonable in all the circumstances ([15], [57]);
  • although disappointing in quantum, it was the best available in all the circumstances ([15], [41]-[42], [61]);
  • the judge found the group members’ interests were satisfactorily protected ([310], [338]), and that was why the plaintiffs’ lawyers had appointed and paid for the Contradictor – to look after the interests of the non-funded group members.  The Court’s solution to a disappointing outcome was to cap all costs and funding commission at a fair sum;
  • Gadens’ costs were approved at a sum higher than it claimed ([38], [258]-[260]);
  • the Court recognised the extreme difficulty of the issues in this case had the effects of causing delays and increasing costs ([21], [47]-[48], [68]-[87], [160], [278], [330]).

The administrator of the settlement will now set about calculating entitlements for distribution of the settlement pool.

Should Continuing Group Members have any other queries or concerns in relation to your registration under the class action settlement, please contact the Gadens Team via email at vic-surfstitch@gadens.com or call our office on 03 9252 2555.

Glenn McGowan QC

Partner & Chief Counsel

Rebecca Di Rago

Associate

vic-surfstitch@gadens.com

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.

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IMPORTANT NOTICE TO GROUP MEMBERS

Proceedings 2017/193375 & 2017/347082

25 November 2020

Our last update was the 14 September 2020.

Between 20 October 2020 and 22 October, the Honourable Justice Stevenson heard the Plaintiffs’ application for settlement approval of the class actions. The hearing lasted 3 days, due to the complex nature of this proceeding and voluminous material included in the Court Book. The Deed Administrators Justification Application for entering into the Deed of Settlement in the class actions was also heard simultaneously.

Given the complex issues that arose during oral arguments of the hearing, on 6 November, his Honour requested that the Plaintiffs and the contradictor for group members provide the Court with additional submissions in response to queries raised by the Court (Additional Material Requests).

On 23 November 2020 the Plaintiffs filed further evidence and submission in respect of the Additional Material Requests.

The contradictor is scheduled to provide his reply submissions shortly and the plaintiffs to file reply submissions thereafter.

His Honour’s decision about the Plaintiffs’ settlement approval application (including costs and commissions to be approved) is reserved pending the Additional Material Requests being answered. Distribution of the Settlement Distribution Scheme can only occur once his Honour hands down his decision.

We will provide a further update on this website once the Court confirms the date his Honour will be handing down his decision.

Should Continuing Group Members have any other queries or concerns in relation to your registration under the class action settlement, please contact the Gadens Team via email at vic-surfstitch@gadens.com or call our office on 03 9252 2555.

 

Glenn McGowan QC

Partner & Chief Counsel

Rebecca Di Rago

Associate

vic-surfstitch@gadens.com

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.

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IMPORTANT NOTICE TO GROUP MEMBERS

Proceedings 2017/193375 & 2017/347082

14 September 2020

As we advised in our update of 11 June 2020, the Plaintiffs’ new loss evidence and costs evidence and submissions were filed with the Court on 26 May 2020.

On 4 August 2020, the Contradictor filed submissions in respect of the Plaintiffs’ evidence and objections.

On 21 August 2020, the Plaintiffs filed their reply submissions.

Due to the Contradictor’s delays (and in consequence the plaintiffs’ delays), the remaining timetable for the proceeding was revised by consent between the parties, and the next step for the plaintiff is to circulate the index to the Court Book amongst the parties.

On 3 September 2020 the SurfStitch Deed Administrators filed their proposed electronic Court Book index in respect of their application for Justification to enter into the Settlement Deed the subject of the class action. The hearing of the Deed Administrators’ application will be heard at the same time of the Settlement Approval hearing as they are intertwined.

The Settlement Approval Hearing remains listed to be heard before the Court on 20 October 2020 with an estimated duration of two (2) days. At this stage, due to COVID-19, an electronic hearing will still be conducted. Despite the plaintiffs’ attempts to bring the settlement date forward, we have been unable to do so due to the court’s limited availability prior to 20 October.

Once Settlement Approval is granted by the Court, settlement distribution will occur in accordance with the Amended Settlement Distribution Scheme approved by the Court. We are unable to say with specificity how much each group member will receive at this stage, as the Deed Administrators’ proof of loss process under the SurfStitch Deed of Company Arrangement needs to be finalised and will feed funds and convertible notes into the SDS for those Continuing Group Members whose registrations have been accepted under both schemes. This is unlikely to be known until closer to Settlement Approval. Importantly, those Continuing Group Members who have registered under the class action settlement, and who have otherwise not been contacted by the Deed Administrators or Gadens in respect of trade data queries do not need to lodge proofs with the Deed Administrators at this stage. Gadens has and are attending to that on behalf of those Continuing Group Members.

Should Continuing Group Members have any other queries or concerns in relation to your registration under the class action settlement, please contact the Gadens Team via email at vic-surfstitch@gadens.com or call our office on 03 9252 2555.

No further action by group members is necessary at this stage.

We will continue to provide group members with updates via our website and encourage registered members to periodically review this news feed.

 Glenn McGowan QC

Partner & Chief Counsel

Rebecca Di Rago

Associate

vic-surfstitch@gadens.com

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.

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IMPORTANT NOTICE TO GROUP MEMBERS

Proceedings 2017/193375 & 2017/347082

11 June 2020

On 23 March 2020 and 14 April 2020 the Honourable Justice Ball made orders that due to:

  1. The change in the law in December 2019 following the High Court decision in BMW v Brewster, which invalidates the operation of the common fund order previously sought by the Plaintiffs in the First Notice Regime; and
  2. the SurfStitch Deed Administrators re-evaluating their estimated value of the convertible notes available in the SHPL and SGL Deeds of Company Arrangement (DoCAs) from $6m to $19m to $0 to $4.25m and cash from $2.7 m to $3m, to $2.4m to $2.7m,

the settlement participation deadline be extended to 4 pm AEDT on 24 April 2020 (Second Registration Deadline), and that all group members who either did not register under the First Notice Regime  during November 2019 or who previously opted out (Non-Participating Group Members) be given the opportunity to re-register for the settlement of the SurfStitch Class Actions.

The Second Registration Deadline has now passed. Gadens and JWS received a total of 903 confirmed registrations, including several large institutional shareholders and custodians.

What if I have already registered for the settlement or I am a Funded Group Member?

All Funded Group Members and registrants of the First Notice Regime have been recorded as registrants of the Second Notice Regime.

What if I missed the Second Registration Deadline?

Gadens has recorded 51 late registrants, who we have sought be included in the settlement from the Court via the Plaintiffs’ evidence filed 26 May 2020. Further registrations for the settlement received post the 26 May 2020 will not be accepted unless there is a Court Order to that effect. This is because all registrants’ preliminary losses have now been assessed and included in the revised loss report.

From what data is my loss assessed?

Your claim loss will be assessed based on your trades under your HIN/SRN number, unless you traded through a custodian or broker. If you fall into the latter category, your trade proofs supplied will be used for assessment.

How much will my return be?

Gadens are unable to say with specificity at this stage the sum which each registered group member will receive from the settlement. Group members will receive a pro-rated return apportioned against the total group member loss sum, depending on the value which their loss bears to the total group member loss. Returns will also be affected by the deduction of costs and funding commission approved by the Court.

Status of Settlement Approval

Following the conclusion of the Second Notice Regime, Gadens and JWS worked assiduously to ensure all registrations were accurately recorded, and the data from the registrants’ share trades extracted the data of all registered members

Due to the volume of registrations, the revised registrant data was provided to Gadens’ loss experts on 8 May 2020 for re-assessment of the registrants’ losses. The data and all proof of trade material provided by registrants has also been provided to the SurfStitch Deed Administrators, for the purposes of them calling for proofs and adjudicating losses under the DoCA. Unfortunately due to the volume of registrants, Gadens’ loss experts were not in a position to provide a revised loss report to us until 22 May 2020.

Throughout the months of April and May, the Plaintiffs were also preparing extensive evidence in response to the Cost Reports provided to the Court by the Court appointed referee in November/December 2019.

On 26 May 2020 the Plaintiffs’ new loss evidence and costs evidence and submissions were filed with the Court.

As a result of the delayed evidence, and due to limited availabilities between the parties’ Counsel between July and August, the settlement approval hearing listed before the Court on the 22 May 2020 has been adjourned to the 20 October 2020 (estimated duration of 2 days). At this stage, due to COVID-19 developments, an electronic hearing will be conducted.

The Plaintiffs are conferring with the parties to try to bring the Settlement Hearing date forward by agreement. We will confirm whether a revised hearing date is scheduled once and if the court makes such orders.

Once Settlement Approval is granted by the Court, settlement distribution will occur in accordance with the Amended Settlement Distribution Scheme approved by the Court, accessible here.

Should group members have any other queries or concerns in relation to your registration, please contact the Gadens Team via email at vic-surfstitch@gadens.com or call our office on

03 9252 2555. No further action by group members is necessary at this stage.

We will continue to provide group members with updates via our website and encourage registered members to periodically review this news feed.

Glenn McGowan QC

Partner & Chief Counsel

Rebecca Di Rago

Associate

vic-surfstitch@gadens.com

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.

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IMPORTANT NOTICE TO GROUP MEMBERS

Proceedings 2017/193375 & 2017/347082

28 April 2020

Second Registration Notice Material

On 14 April Gadens sent a settlement registration pack (Second Registration Notice Material) to

(a) Non Participating Group Members identified by the SurfStitch Deed Administrators;

(b)  members who registered as part of the First Notice Regime in November 2019;

(c) Funded Group Members; and

(d) registrants of the First Notice Regime..

If you were identified as one of the above,  you would have received from Gadens either by post, or by email dated 14 April 2020 the following:

  1. Second Notice to Group Members regarding the proposed settlement of the SurfStitch (Schedule 1);
  2. Group Member Registration and DoCA authorisation form (Annexure A);
  3. McConnell Orders made 23.3.20; and
  4. Nakali Orders made 23.3.20

(collectively, Second Registration Notice Material)

You may also have received a follow up email from Gadens or Johnson Winter and Slattery on the 22 April and 24 April 2020.

All group members contacted by Gadens and Johnson Winter and Slattery have been advised that should they wish to participate in the settlement they must have  completed their electronic registration form by 4:00 pm AEDT on 24 April 2020.

This deadline has now expired and will not be extended unless the Court makes an order to that effect.

Whilst the deadline has expired, the Court may still allow late registrants to participate, provided that the registrations are lodged as soon as possible within the next 24 hours. We urge all Non Participating Group Members to lodge the material as soon as possible.

Funded Group Members and registrants of the First Notice Regime who are yet to complete the electronic registration process who have not opted out are automatically registered for the settlement. However you must also complete the electronic registration process above, to ensure your ASX reliance and disclosures answers are captured for the purposes of your registrations being passed on to the SurfStitch Deed Administrators, for adjudication of losses under the SGL/SHPL DoCA, which will flow into the Class Action Settlement fund.

You can still access your unique electronic form, with your details pre-populated by clicking the URL link contained in the covering letter/email received from Gadens. Each group members’ unique SurfStitch HIN/SRN number is also featured in the covering letter or email received. The electronic registration form can be signed electronically, and a digital version will be sent to you via email once submitted.

Proving your claim in the Settlement

Gadens has been working closely with the SurfStitch Deed Administrators to ensure the group member registrations are also accepted in the SHPL and SGL Deeds of Company Arrangement (DoCAs). To ensure your losses are accepted and your claim to the DoCA pool fund (which will flow into the CAS Pool on settlement approval) is valid, both the Plaintiffs and the Deed Administrators require all registered members to prove their reliance on the ASX announcements for the period 27 August 2015 to 9 June 2016 which led to group members buying, selling or retaining shares during that period. This question is asked of you in the electronic form.

What if I do not have a HIN/SRN number?

A HIN/SRN number will not be featured in your Second Registration Notice Material if you traded your shares via a custodian or broker. If this applies to you, when completing your registration please:

  1. insert your custodian account number in the HIN/SRN field;
  2. insert your custodian name in the comments box on the form; and
  3. Forward an email to vic-surfstitch@gadens.com with your name, HIN/SRN number, your custodian account number and name in the subject line, and attach copies of your balance statements and Buy/Sell certificates for the period 27 August 2015 to 9 June 2016. Please ensure all your proofs of trade are contained in one email to us.

What if I traded my SurfStitch shares through multiple accounts?

If you held shares in the names of multiple accounts (i.e a personal account, a superannuation fund, or via a corporate entity) a separate registration form must be completed for each account. Group Members may have therefore received separate material and URL links from Gadens as applicable.

If you received material for one account, but not for other(s) please visit our home page, and click “Register for Settlement” to register each account for which you did not receive material. Your HIN/SRN number must be inserted for each account. Only those accounts identified as potential class action participants have received a unique registration link.

What if my URL link does not work?

Group Members who are experiencing technical difficulties can register for the settlement using the “Register for Settlement” process above and complete a generic version of the form. Please ensure you enter all the compulsory data fields (specifically your HIN/SRN) which will help us track your registration. Please follow the prompts on our homepage www.gadenssurfstitchclassaction.com.au.

What if I have not received the Second Registration Material?

If you think you may be a group member but have not received the Second Registration Material from Gadens, you can register for the settlement via the “Register for Settlement” process on our home page. You qualify for the class action if you:

  1. acquired shares between 23 October 2015 and 9 June 2016 and retained shares on any of 25 February 2016, 3 May 2016 or 9 June 2016 (Acquisition Class); and or
  2. already held shares on 23 October 2015 and retained shares during the above periods relying on the forecasts and statements issued by SurfStitch (Retention Class)

It is possible to be a member under both sub categories, depending on when you traded your SurfStitch shares.

From what data is my loss assessed?

Your claim loss will be assessed based on your trades under your HIN/SRN number, unless you traded through a custodian or broker. If you fall into the latter category, your trade proofs supplied will be used for assessment.

How much will I receive from the settlement?

Your net settlement return will be a pro-rated amount based on total registered loss. We cannot say with specificity how much you will get back at this stage, as the returns will depend on the number of registrants, and the volume of shares each member held.

Will I be out of pocket for costs or commissions?

Costs and Commissions will be deducted from the settlement pool before any distributions to group members. That is, each group members’ pro-rated portion for costs and commissions will be deducted first, before you received your net return.

No group member will be out of pocket.

When is the Settlement Approval Hearing?

The settlement approval hearing is currently listed before Justice Ball on the 22 May 2020. At this stage, due to COVID-19 developments, an electronic hearing will be conducted.

Once Settlement Approval is granted by the Court, settlement distribution will occur in accordance with the Amended Settlement Distribution Scheme approved by the Court, accessible here.

Should group members have any other queries or concerns in relation to your registration, please contact the Gadens Team via email at vic-surfstitch@gadens.com or call our office on

03 9252 2555.

 

Glenn McGowan QC

Partner & Chief Counsel

Rebecca Di Rago

Associate

vic-surfstitch@gadens.com

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.

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IMPORTANT NOTICE TO GROUP MEMBERS

Proceedings 2017/193375 & 2017/347082

15 April 2020

On 23 March 2020 and 14 April 2020 the Honourable Justice Ball made orders that due to:

  1. The change in the law in December 2019 following the High Court decision in BMW v Brewster, which invalidates the operation of the common fund order previously sought by the Plaintiffs in the First Notice Regime; and
  2. the SurfStitch Deed Administrators re-evaluating their estimated value of the convertible notes available in the SHPL and SGL Deeds of Company Arrangement (DoCAs) from $6m to $19m to $0 to $4.25m and cash from $2.7 m to $3m, to $2.4m to $2.7m,

the settlement participation deadline be extended to 4 pm AEDT on 24 April 2020 (Second Registration Deadline), and that all group members who either did not register under the First Notice Regime  during November 2019 or who previously opted out (Non-Participating Group Members) be given the opportunity to re-register for the settlement of the SurfStitch Class Actions.

 

Second Registration Notice Material

If you have been identified as a Non-Participating Group Member, a Funded Group Member or a registrant of the First Notice Regime, you would have received or will shortly receive from Gadens either by post, or by email the following:

  1. Second Notice to Group Members regarding the proposed settlement of the SurfStitch (Schedule 1);
  2. Group Member Registration and DoCA authorisation form (Annexure A);
  3. McConnell Orders made 23.3.20; and
  4. Nakali Orders made 23.3.20

(collectively, Second Registration Notice Material)

 

Proving your claim in the Settlement

Gadens has been working closely with the SurfStitch Deed Administrators to ensure the group member registrations are also accepted in the SHPL and SGL Deeds of Company Arrangement (DoCAs). To ensure your losses are accepted and your claim to the DoCA pool fund (which will flow into the CAS Pool on settlement approval) is valid, both the Plaintiffs and the Deed Administrators require all registered members to prove their reliance on the ASX announcements for the period 27 August 2015 to 9 June 2016 which lead to group members buying, selling or retaining shares during that period.

All group members contacted by Gadens, and who wish to participate in the settlement must by 4:00 pm AEDT on 24 April 2020 complete their electronic registration form. You can access your unique electronic form, with your details pre-populated by clicking the URL link contained in the covering letter/email received from Gadens. Each group members’ unique SurfStitch HIN/SRN number is also featured in the covering letter or email received. The electronic registration form can be signed electronically, and a digital version will be sent to you via email once submitted.

We request that each registrant please complete their form electronically, ensuring that you answer your reliance and disclosure questions accurately.

 

What if I have already registered for the settlement or I am a Funded Group Member?

Funded Group Members and registrants of the First Notice Regime must also complete the electronic registration process above, to ensure their reliance and disclosures answers are captured and passed on to the SurfStitch Deed Administrators.

 

What if I do not have a HIN/SRN number?

A HIN/SRN number will not be featured in your Second Registration Notice Material if you traded your shares via a custodian or broker. If this applies to you, when completing your registration please:

  1. insert your custodian account number in the HIN/SRN field;
  2. insert your custodian name in the comments box on the form; and
  3. Forward an email to vic-surfstitch@gadens.com with your name, HIN/SRN number, your custodian account number and name in the subject line, and attach copies of your balance statements and Buy/Sell certificates for the period 27 August 2015 to 9 June 2016. Please ensure all your proofs of trade are contained in one email to us.

 

From what data is my loss assessed?

Your claim loss will be assessed based on your trades under your HIN/SRN number, unless you traded through a custodian or broker. If you fall into the latter category, your trade proofs supplied will be used for assessment.

 

What if I traded my SurfStitch shares through multiple accounts?

If you held shares in the names of multiple accounts (ie a personal account, a superannuation fund, or via a corporate entity) a separate registration form must be completed for each account. Group Members may therefore receive separate material and URL links from Gadens as applicable.

If you received material for one account, but not for other(s) please visit our home page, and click “Register for Settlement” to register each account for which you did not receive material. Your HIN/SRN number must be inserted for each account.

 

What if my URL link does not work?

Group Members who are experiencing technical difficulties can register for the settlement using the “Register for Settlement” process above and complete a generic version of the form. Please ensure you enter all the compulsory data fields (specifically your HIN/SRN) which will help us track your registration.

 

What if I have not received the Second Registration Material?

If you think you may be a group member but have not received the Second Registration Material from Gadens, you can register for the settlement via the “Register for Settlement” process on our home page. You qualify for the class action if you:

  1. acquired shares between 23 October 2015 and 9 June 2016 and retained shares on any of 25 February 2016, 3 May 2016 or 9 June 2016 (Acquisition Class); and or
  2. already held shares on 23 October 2015 and retained shares during the above periods relying on the forecasts and statements issued by SurfStitch (Retention Class)

It is possible to be a member under both sub classes, depending on when you traded your SurfStitch shares.

 

When is the Settlement Approval Hearing?

The Settlement Approval hearing is currently listed before Justice Ball on the 22 May 2020. At this stage, due to COVID-19 developments, an electronic hearing will be conducted.

Once Settlement Approval is granted by the Court, settlement distribution will occur in accordance with the Amended Settlement Distribution Scheme approved by the Court, accessible here.

Should group members have any other queries or concerns in relation to your registration, please contact the Gadens Team via email at vic-surfstitch@gadens.com or call our office on

03 9252 2555.

We will continue to keep Group Members advised of developments via our website.

 

Glenn McGowan QC

Partner & Chief Counsel

Rebecca Di Rago

Associate

vic-surfstitch@gadens.com

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.

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IMPORTANT NOTICE TO GROUP MEMBERS

Proceedings 2017/193375 & 2017/347082

23 March 2020

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.

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 reasons including:

  1. The proposed sale by Alceon of 50.1% of EziBuy to NoniB, the shareholders’ meeting of which was scheduled for the 23 December. The proposed sale was likely to impact the value of the convertible notes available under the DoCAs the subject of the proposed settlement; and
  2. 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 required 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 4pm AEDT on 11 December 2019. However, the plaintiffs are seeking an extension from the Court. We therefore continue to encourage the return both pages of Annexure A forms (signed) to our firm via vic-surfstitch@gadens.com in the meantime.

On 29 January 2020, the Court made orders by consent of all parties to the proceeding, requiring the SurfStitch Deed Administrators to share with the solicitors for the plaintiffs the share trading data of all group members identified to be potential group members and who received notices pursuant to the opt out regime in early November.

On 31 January 2020, that data was shared with the Plaintiffs. Between the 3 February and 19 February, the plaintiffs’ solicitors worked closely with the plaintiffs’ engaged loss experts to reconcile the share trading data of all registered and funded group members, and otherwise sought proof from those members whose data was not included as part of the set provided by the company (for example, institutional or custodial shareholders who have registered). The Plaintiffs loss experts then proceeded to calculate the registered group member loss for the settlement approval application. A report has now been filed into evidence.

The 7 February directions hearing was adjourned to the 6 March 2020 with the consent of all parties, to facilitate completion of the trading data reconciliation, loss calculations and discussions between the parties about its impact on the settlement application.

At the directions hearing on 6 March 2020 a further amended motion (FAMNOM) was filed with the Court for settlement approval, with the matter being set down for hearing on 22 May 2020. Also filed was as an affidavit in support setting out the reasons the parties now seek an Funding Equalisation Order (FEO), and stating that the Loss numbers had been assessed by McGrath Nicol and were returned to us on 6 March 2020.

At the last directions hearing, the parties appeared before Justice Hammerschlag and agreed that the contradictor would have until 11 March 2020 to consider whether a further notice, and further registration regime to GMs would be necessary (Further Registration Regime). The parties discussed the contents of said notice on 13 March, which was filed with the Court on Friday 20 March for the Court’s consideration. Due to developments with COVID-19, the parties and contradictor were required to file submissions about anything not agreed by 20 March. The only significant item remaining in dispute is that the Plaintiffs have sought that the costs of the Further Registration Regime be shared equally by the SurfStitch Deed Administrators. We are awaiting the Court’s decision. If approved, the tentative further registration deadline will be extended to 17 April, and will require group members (who have not yet registered) to register online.

The SurfStitch Deed Administrators have otherwise re-assessed the value of the convertible notes following the sale by Alceon of 50.1% of EaziBuy to NoniB, following the shareholders’ meeting of NoniB on 23 December 2019, which will be contained in the Further Registration Notice. That figure has significantly changed from the figure announced in the first notice sent in November, and will be confirmed once the Court approves the Further Registration Notice.

Both the Gadens and Johnson Winter & Slattery teams continue to follow up funded group members for unreturned Annexure A forms. 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.

We will continue to keep group members advised via the website, or upon written request as matters progress.

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

Glenn McGowan QC

Partner & Chief Counsel

Rebecca Di Rago

Associate

VIC-Stitch@gadens.com

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.

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IMPORTANT NOTICE TO GROUP MEMBERS

Proceedings 2017/193375 & 2017/347082

22 November 2019

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

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

The date by which the Defendants and Contradictor must file their reply material has also been postponed by the same timeframe to 3 December 2019.

The deadline for registering to participate in the settlement, opting out, or objecting to the settlement remains to be 4pm AEDT on 11 December 2019 (Participation Deadline).

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 well before the Participation Deadline.

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

Glenn McGowan QC

Partner & Chief Counsel

Rebecca Di Rago

Associate

VIC-Stitch@gadens.com

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.

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The 13 September 2019 directions hearing before Hammerschlag J was adjourned by consent between the parties to 27 September 2019. A re-convened mediation is scheduled for 24 September with the Honourable Peter Jacobson QC resuming his role as mediator.

The parties will endeavour to resolve all outstanding issues in relation to the terms of settlement for the “in principle” agreement reached at the 12 June mediation.

We thank group members for their patience, and encourage all to continue reviewing our website for further updates.

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

Glenn McGowan QC

Partner & Chief Counsel

Rebecca Di Rago

Associate

VIC-Surf-Stitch@gadens.com

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.

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