BT Super Class Action

Settlement Distribution

On 13 November 2023, the settlement approval hearing took place and the Court considered the Proposed Settlement. On 7 December 2023, the Court approved the settlement as it considered it to be fair, reasonable and in the best interest of the group members.

The distribution of settlement funds to eligible group members has commenced. Payments will continue to be processed throughout 2025.

REGISTRATION CLOSED

Group members in the class action were required to submit a registration by 11.59pm AEDT on 21 December 2023 to ensure they are eligible to receive any potential compensation. This deadline was set by the Court therefore, we are unable to accept registrations after the deadline.

You should be aware of two things in particular:

1. Group Members were required to register by 11.59pm AEDT on 21 December 2023 to ensure they are eligible to receive an Entitlement under the Settlement.
2. On 7 December 2023, his Honour Justice Murphy of the Federal Court of Australia approved the settlement of the BT Super Class Action. His Honour made orders approving the distribution of the settlement funds in accordance with a Settlement Distribution Scheme.

Further information can be found below under the heading “What do group members need to do?”

The settlement

On 4 September 2019, a class action was commenced by Tracy Ghee (the Applicant) in the Federal Court of Australia against BT Funds Management Limited (BTFM) and Westpac Life Insurance Services Ltd (WLIS) (together, the Respondents).

BTFM was the trustee of the BT Super for Life and BT Super superannuation products. The proceeding related to a particular cash-only investment option offered in those products called Super Cash or Cash (Cash Option).

In the BT Super Class Action, the Applicant alleged that BTFM breached various legal duties owed to members who invested in the Cash Option by virtue of BTFM investing member’s funds via its former related entity, WLIS (now TAL Life Insurance Services Limited). It was alleged that BTFM’s contraventions caused loss to be suffered by the Applicant and group members, in that higher investment returns would have been earned if those contraventions had not occurred. The Applicant alleged that WLIS was knowingly involved in the contraventions by BTFM. The Applicant sought compensation for losses suffered by group members from BTFM and an account of profits from WLIS.

The Respondents denied the allegations made in the BT Super Class Action.

On 14 October 2022, following a mediation, the parties entered into a Heads of Agreement setting out the terms of the Proposed Settlement, which included that:

1. the Respondents would pay (without any admission of liability) the Settlement Sum of $29.95 million inclusive of interest and legal costs;

2. all claims against the Respondents made in the BT Super Class Action would be resolved and, to the extent permitted by law, the Applicant and group members would release the Respondents and Westpac Banking Corporation, and their related entities and officers, from all claims which they had, may have or may have had in the future against the Respondents relating to the matters which are the subject of the Proceeding; and

3. all group members would be bound by the terms of the Proposed Settlement.

On 7 December 2023, his Honour Justice Murphy of the Federal Court of Australia approved the settlement of the BT Super Class Action. His Honour made orders approving the distribution of the settlement funds in accordance with the Settlement Distribution Scheme.

This page provides important information about:

The Settlement in the BT Super Class Action;
What group members needed to do if they wished to participate in the settlement;
The settlement decision;
Information about legal and funding costs of the BT Super Class Action.

What is a class action?

A class action is a type of court proceeding in which one person, the Applicant, brings a claim on behalf of a group of people, referred to as group members, who have been affected by the same conduct.

All people who meet the definition of ‘group member’ in the statement of claim in a class action are group members in the proceeding, unless they took steps to opt out of the proceeding. The deadline for opting out of the BT Super Class Action was 1 December 2021. More information about group membership of the BT Super Class Action can be found below under the heading “What is the BT Super Class Action?”

What is the BT Super class action

In the BT Super Class Action, the Applicant alleged that BTFM breached various legal duties owed to members who invested in the Cash Option by virtue of BTFM investing group members’ funds via its former related entity, WLIS (now TAL Life Insurance Services Limited). It is alleged that BTFM’s contraventions caused loss to be suffered by the Applicant and group members, in that higher investment returns would have been earned if those contraventions had not occurred. The Applicant alleged that WLIS was knowingly involved in the contraventions by BTFM. The Applicant sought compensation for losses suffered by group members from BTFM and an account of profits from WLIS.

The Respondents denied the allegations made in the BT Super Class Action.

Group members in the BT Super Class Action are people who:

(a) were members invested in the Cash Option within the BT Super for Life or BT Super product between 29 October 2007 and 31 October 2019 (Claim Period)

(b) during the Claim Period, received payment of all or part of the benefits of a deceased person who had invested in the Cash Option;

(c) were the spouse of a person who had invested in the Cash Option and at any time during the Claim Period received a payment of all or part of the member’s account pursuant to an order or settlement in a Family Law Act 1975 proceeding or superannuation agreement.

BTFM has a list of all people who are group members in the BT Super Class Action.

Complete details of the Applicant’s allegations and the Respondents’ defences can be found in the Further Amended Statement of Claim and Defence to Further Amended Statement of Claim, which are available to view under the “Key Documents” heading below.

Legal costs and litigation funding Charges

The BT Super Class Action has been funded by Therium Litigation Finance Atlas AFP IC (Therium) and Slater and Gordon.

Therium

Under its funding arrangement, Therium:

indemnified the Applicant against any adverse costs orders;

paid part of the Applicant’s legal costs, being $2,716,489 in legal fees and disbursements (the Therium Paid Legal Costs); and

paid or will pay $1,180,000 for ‘After the Event’ insurance and related expenses in relation to the risk of an adverse costs order (ATE Expenses).

Therium sought remuneration by way of a “Common Fund Order”, which is a mechanism which ensures that its remuneration and legal and other costs are shared by all group members who will share in the Settlement Sum.

Therium sought a deduction from the Settlement Sum totalling $10,416,063 comprising the following amounts in reimbursement and remuneration in relation to the BT Super Class Action:

$2,716,489 for reimbursement of the Therium Paid Legal Costs;
$1,180,000 for reimbursement of the ATE Expenses; and
$6,519,574 as a litigation funding commission (calculated as 2.4 times the Therium Paid Legal Costs).

On 7 December 2023, the Court approved a deduction from the Settlement Sum to be paid to Therium totalling $9,604,989 comprising the following amounts:

$2,716,489 for reimbursement of the Therium Paid Legal Costs;
$1,180,000 for reimbursement of the ATE Expenses; and
$5,708,500 as a litigation funding commission.

The Applicant and Slater and Gordon

Slater and Gordon’s legal fees and disbursements were independently reviewed by a costs referee appointed by the Court. The referee assessed that the fair and reasonable amount of legal fees and disbursements is approximately $7 million, inclusive of an uplift fee of 25% on legal fees that were incurred on a “no win-no fee basis”. The Applicant sought the sum of $4,700,555 to be deducted from the Settlement Sum as payment to Slater and Gordon for the unpaid legal fees and disbursements it incurred plus an uplift fee (Unpaid Slater and Gordon Costs).

On 7 December 2023, the Court approved the following deductions incurred in relation to the BT Super Class Action from the Settlement Sum:

$4,700,555 for the Unpaid Slater and Gordon Costs, including applicable uplift;

$15,000 for the Applicant, representing her reasonable claim for compensation for her time and effort in prosecuting the BT Super Class Action on behalf of group members; and

up to $215,000 for estimated costs in relation to the distribution of the Settlement Sum to group members.

Court’s determination of legal costs, remuneration and other expenses

As the Court has approved deductions from the settlement sum totalling approximately $14.55 million, there will likely be approximately $15.45 million available for distribution to group members, plus interest accrued in relation to the Settlement Sum (Net Settlement Sum).

The above deductions from the Settlement Sum have the effect that all group members who stand to benefit from the Settlement contribute towards the costs of the BT Super Class Action.

How will the Net Settlement Sum be distributed?

The process by which the Net Settlement Sum will be distributed is outlined in a Settlement Distribution Scheme (SDS). The SDS will includes “Apportionment Formula” which details how each group member’s share of the Net Settlement Sum (Entitlement) will be calculated.

The Court has made Orders approving the SDS which is available to view in the Key Documents section below.

Apportionment Formula

BTFM will provide the Settlement Administrator with account data for all group members on a confidential basis, including the interest received by each group member for each month in the Claim Period.

The Court has ordered that this data can be used in the Apportionment Formula to calculate each group member’s Entitlement, and that group members will not be asked to provide any information or documents themselves to calculate their Entitlements.

Entitlements under $10 to be excluded

The Court has ordered that any group member whose Entitlement is calculated to be less than $10 will not receive a distribution, as the costs of administering those distributions would likely be disproportionate. The value of all Entitlements below that threshold would be redistributed to other group members on a pro rata basis.

If you do not receive an Entitlement, it may be because your entitlement was calculated to be less than $10. Group members who do not receive an Entitlement for this reason will still be bound by the Settlement.

How will Entitlements be paid?

This section outlines the distribution process for the payment of group members’ Entitlements.

If you are a group member in the BT Super Class Action, you were required to register by 11.59pm AEDT on 21 December 2023 to receive any Entitlement you may have to the Net Settlement Sum.

There are five categories of group member. All group members were required to register to ensure they are eligible to receive their Entitlement. Group members who registered will be paid their Entitlement directly into their nominated bank account. Group Members who are classified as Eligible Current Members (as defined below) and who did not register may still receive their Entitlement via an alternative mechanism, as set out below.

Eligible Current Members

Eligible Current Members

Group members who currently have active accounts with Mercer Super as a result of the successor fund transfer of BT Super for Life and BT Super to Mercer Super in April 2023 that are able to receive contributions.

This does not include any member holding an allocated pension account with Mercer as a result of the successor fund transfer, who are Current Mercer Pension Members (see below).

Distribution Process

Eligible Current Members were required to register by 11:59pm AEDT on 21 December 2023 to ensure they are eligible to receive their Entitlement by payment into their nominated bank account.

For Eligible Current Members who did not register prior to the deadline, it is proposed that the Settlement Administrator may pay such members’ Entitlements to Mercer Super for allocation into their current Mercer Super account. Mercer Super has advised that it will treat such payments as concessional contributions, so they will be subject to tax of 15% if Mercer holds a tax file number for that group member, or 47% if Mercer does not hold a tax file number for that group member. This arrangement has not yet been confirmed.

Steps Required

Eligible Current Members were required to register by 11:59pm AEDT on 21 December 2023 to ensure they are eligible to receive their Entitlement into their nominated bank account.

The registration deadline was set by the Court and we are unable to accept registrations submitted after the deadline.

Eligible Current Members who did not register prior to the deadline may be able to receive their Entitlement as a contribution to their current Mercer Super account member.

Former Members

Former Members

Group members who do not currently have active accounts with Mercer Super as a result of the successor fund transfer of BT Super for Life and BT Super to Mercer Super in April 2023. This includes all group members who closed their BT Super for Life or BT Super accounts at any time prior to the successor fund transfer or closed their Mercer Super accounts after the successor fund transfer.

Distribution Process

Former Members, Spouses and Current Mercer Pension Members were required to register by 11:59pm AEDT on 21 December 2023 to ensure that they are eligible to receive their Entitlement by payment into their nominated bank account.

Former Members, Spouses and Current Mercer Pension Members who did not register prior to the deadline will be unable to receive their Entitlement but will still be bound by the Settlement.

Steps Required

Former Members, Spouses and Current Mercer Pension Members were required to register by 11:59pm AEDT on 21 December 2023 in order to receive their Entitlement.

The registration deadline was set by the Court and we are unable to accept registrations submitted after the deadline.

Spouses

Spouses

Spouses of a person who invested in the Cash Option and who, during the Claim Period, received a payment of all or part of the member’s account pursuant to an order or settlement in a Family Law Act 1975 proceeding or superannuation agreement.

Distribution Process

Former Members, Spouses and Current Mercer Pension Members who did not register prior to the deadline will be unable to receive their Entitlement but will still be bound by the Settlement.

Steps Required

Former Members, Spouses and Current Mercer Pension Members were required to register by 11:59pm AEDT on 21 December 2023 in order to receive their Entitlement.

The registration deadline was set by the Court and we are unable to accept registrations submitted after the deadline.

Current Mercer Pension Members

Current Mercer Pension Members

Group members who currently hold allocated pension accounts with Mercer Super as a result of the successor fund transfer of BT Super for Life and BT Super to Mercer Super in April 2023.

Distribution Process

For Former Members, Spouses and Current Mercer Pension Members who did not register prior to the deadline will be unable to receive their Entitlement but will still be bound by the Settlement.

Steps Required

Former Members, Spouses and Current Mercer Pension Members were required to register by 11:59pm AEDT on 21 December 2023 in order to receive their Entitlement.

The registration deadline was set by the Court and we are unable to accept registrations submitted after the deadline.

Known Legal Personal Representatives or Beneficiaries

Known Legal Personal Representatives or Beneficiaries

Legal personal representatives or beneficiaries of members who invested in the Cash Options during the Claim Period, who BTFM is aware are deceased.

If BTFM is not aware that a member is deceased, the member will be treated as an Eligible Current Member, Former Member, or Current Mercer Pension Member, as applicable.

Distribution Process

Known Legal Personal Representatives or Beneficiaries were required to register by 11:59pm AEDT on 21 December 2023 in order to receive their Entitlement by payment into their nominated bank account.

Steps Required

Known Legal Personal Representatives or Beneficiaries were required to register by 11:59pm AEDT on 21 December 2023 in order to receive their Entitlement.

The registration deadline was set by the Court and we are unable to accept registrations submitted after the deadline.

Further details regarding each of the above distribution scenarios is set out in the Settlement Distribution Scheme which is available under the “Key Documents”.

When will Entitlements be paid?

The distribution of the Net Settlement Sum to group members in accordance with the Settlement Distribution Scheme will occur in 2024, after the eligibility of all group members who registered has been assessed.

This webpage will be updated when these assessments have taken place. Please do not direct any queries regarding payment of entitlements to BTFM or WLIS as they do not hold this information.

Settlement Administrator

The Court has made orders appointing Slater and Gordon as the Settlement Administrator to administer the Settlement in accordance with the Settlement Distribution Scheme approved by the Court.

Settlement Updates

Slater and Gordon will continue to update this web page with the latest information about the Settlement and Settlement Distribution Scheme, including payment of Entitlements. If a group member is unsure whether their Entitlement has been paid, they can access the latest updates under the heading “Distribution Update”, which will be added to this webpage once distribution commences.