Miciulis v Cimic Group Limited

This case arose from a shareholder class action against CIMIC Group Limited. The applicant, Miciulis Superannuation Pty Ltd, sued on behalf of people who acquired an interest in ordinary shares in CIMIC during the period from 7 February 2018 to the close of trading on 22 January 2020. The claims alleged that CIMIC failed to disclose material information to the market and engaged in misleading or deceptive conduct.

The judgment identifies the alleged subject matter of the claims at a high level. The allegations concerned CIMIC's use of factoring facilities and the impact of factoring on operating cash flow and EBITDA cash conversion, and CIMIC's accounting for its exposure to BIC Contracting LLC, a Middle Eastern joint venture. The applicant alleged that group members suffered loss, including by buying shares at an inflated price or above their true value.

The case did not end with a trial judgment on whether those allegations were made out. Instead, after the proceeding had been on foot for several years, the parties reached an in-principle settlement at a Court-ordered mediation in September 2024. They later signed a deed of settlement on 27 November 2024 under which CIMIC agreed to pay $45.25 million on a no-admissions basis in exchange for releases.

That is an important distinction for business readers. This decision is not a final ruling that CIMIC contravened the law. It is a settlement approval decision in a representative proceeding. The Court's role was to supervise the compromise and decide whether it should be approved.

The procedural history matters because it explains why registration became such a major issue. The proceeding was commenced on 21 August 2020 as an open class action. On 26 April 2023, the Court made opt out and registration orders. Group members were given until 22 June 2023 to opt out, and they could also register their claim by that date by completing a registration form or executing a litigation funding agreement with the funder.

The notice sent to potential group members was explicit. If a person did nothing, they would remain a group member, but they might not be permitted to participate in any settlement reached before final judgment. The notice also said the applicant intended to seek an order that only registered group members would be allowed to seek a benefit under any settlement, subject to Court approval. That warning became central later.

The parties attended a Court-ordered mediation on 10 and 11 September 2024. The mediation was reconvened by agreement on 20 September 2024, and on that date the parties reached an in-principle agreement to settle. The deed of settlement was then signed on 27 November 2024 by the applicant, CIMIC, the funder and the applicant's solicitors.

The Court vacated the trial date that had been set to commence on 3 March 2025 so that the settlement approval application could be heard. It also approved the form and content of a Notice of Proposed Settlement, which was distributed to group members from 20 January 2025. Objections could then be filed. The judgment records that 47 notices of objection were received from 59 group members by the time of the settlement approval hearing.

For businesses, this sequence shows that settlement approval in a class action is not a private side deal. It is a structured Court process involving notices, objections, evidence, cost scrutiny and detailed orders about who is bound and who gets paid.

The legal issue before Neskovcin J was whether the proposed settlement should be approved under section 33V of the Federal Court of Australia Act 1976 (Cth). In a representative proceeding, a settlement cannot simply be agreed between the named parties without Court approval. The Court must decide whether the compromise is fair and reasonable in the interests of group members as a whole.

The judgment explains that this involves at least two related fairness questions. First, the Court considers whether the settlement is fair and reasonable as between the parties, having regard to the claims of group members. Secondly, the Court considers whether the settlement is fair and reasonable as between group members themselves. That second question matters because a settlement may affect different group members differently depending on how the distribution scheme works.

Here, the Court had to consider more than the headline settlement amount of $45.25 million. It also had to decide whether to approve the settlement distribution scheme, the proposed deductions for legal costs and disbursements, the uplift fee, administration costs, funder costs, the funding commission and the applicant's reimbursement payment. The funder, Omni Bridgeway, sought and was granted leave to intervene for the purposes of the settlement approval application.

The Court also had to decide who could participate in the settlement. The proposed approach was that only registered group members would receive a distribution, but some late registrants would be treated as registered. In addition, the Court had to deal with confidentiality and non-publication orders over parts of the evidence, including parts of counsel's opinion, distribution estimate information and personal identifying information.

That combination of issues is typical of modern funded class action settlements. For business readers, it shows that the Court's supervision extends well beyond asking whether the total dollar figure sounds reasonable.

The Court approved the settlement and the settlement distribution scheme. Neskovcin J stated that the proposed settlement was fair and reasonable and in the interests of group members as a whole, and that it was appropriate to approve the settlement and make orders substantially in the terms sought by the applicant.

The orders approved the deed of settlement signed on 27 November 2024 and the distribution scheme provided to the Court. The Court also granted the funder leave to intervene for the settlement approval application and appointed Jeremy Zimet of Phi Finney McDonald as administrator of the settlement distribution scheme, subject to any direction of the Court.

The Court ordered that only registered group members were entitled to receive a distribution, but it also deemed certain late registrants to be registered group members. Two categories were recognised. The first category covered people who had unsuccessfully attempted to register before 20 December 2024 and had not opted out. The second category covered people who had not registered or opted out in accordance with the earlier orders and sought to register on or after 20 December 2024. Those people were listed in annexures to the orders.

The Court adopted the report of the costs referee and approved specified amounts for the applicant's reimbursement payment, remaining costs, uplift fee, total applicant's costs and disbursements, administration costs and funder costs. It also approved the funding commission as the balance of the relevant settlement amount after deducting the approved costs and expenses, and made a common fund order requiring all participating group members to pay a pro-rata percentage of the funding commission from any distribution they received.

The orders also dealt with the deed poll that had been given as security for the respondent's costs, and set out a process for the parties to seek final dismissal and bar orders after completion of the settlement administration process. Those future orders were to include dismissal of the claims as between the applicant and respondent and a bar against further claims by non-opt-out group members in relation to the released matters, while preserving rights to enforce the settlement deed and to seek directions about administration of the distribution scheme.

One of the most practical parts of the decision is the treatment of registration. The Court approved a settlement structure under which only registered group members could receive a distribution. That reflects the earlier notice process, which had warned group members that if they did nothing they might remain bound by the proceeding but still be excluded from any settlement benefit.

This distinction can surprise business owners and investors. In a representative proceeding, not opting out does not necessarily mean you will share in a settlement. If the Court has approved a registration process and later approves a settlement limited to registered group members, a person may be bound by the outcome yet receive no payment. That is why registration notices and deadlines are commercially significant.

At the same time, the Court showed some flexibility. It deemed certain late registrants to be registered group members. The orders identify two groups: people who had unsuccessfully attempted to register before 20 December 2024, and people who sought to register on or after that date. The details of those individuals were contained in annexures to the orders.

For businesses involved in class actions, this part of the case is a reminder that notice design, registration systems and record keeping matter. If you are a respondent, these issues can affect the final size and administration of the settlement class. If you are a potential claimant or group member, missing a registration step can materially affect your recovery.

The judgment and orders show how closely the Court supervises deductions from a class action settlement. The settlement sum was $45.25 million, but that did not mean the whole amount would be distributed directly to group members. The Court had to approve the deductions that would come out of the settlement fund before distributions were made.

The approved amounts included an applicant's reimbursement payment of $25,375.00 including GST, remaining costs of $2,965,149.61 including GST, an uplift fee of $741,287.21 including GST, total applicant's costs and disbursements of $15,949,623.52 including GST, administration costs of $146,850.00 including GST, and funder costs of $22,248.64 including GST. The Court also approved the funding commission in an amount defined by the settlement distribution scheme after deducting the approved costs and expenses referred to in the orders.

The Court then made a common fund order requiring all participating group members to pay to the funder a pro-rata percentage of the funding commission from any distribution they received. That is commercially important because it spreads the funding burden across participating group members rather than limiting it only to those who signed a funding agreement.

For businesses, the lesson is that the headline settlement number is only one part of the economics. In any funded representative proceeding, the Court may need to assess legal costs, uplift arrangements, administration expenses, funder costs and the mechanism for calculating the funder's return. Those deductions can materially affect the net amount available for claimants and the overall attractiveness of settlement.

The Court made detailed confidentiality and non-publication orders under sections 37AF and 37AG of the Federal Court of Australia Act to prevent prejudice to the proper administration of justice. These orders covered parts of a confidential opinion of counsel, parts of affidavits containing distribution estimate values, and personal identifying information in annexures and affidavits.

In practical terms, the orders did two things. First, they restricted who could access or publish the confidential material. Some material could only be disclosed to the Court, the applicant, the applicant's legal representatives, the funder and the funder's legal representatives until further order or until a specified period after the settlement approval orders if no appeal was filed. Secondly, the orders required redacted versions of affidavits to be filed within set timeframes so that a public version of the record would still exist without exposing sensitive information.

For businesses, this is a useful example of how confidentiality is handled in settlement approval applications. The Court may protect genuinely sensitive material such as legal advice, detailed distribution calculations and personal information, but it will often require redacted public filings rather than allowing the whole process to remain hidden. If your business is involved in a class action settlement, confidentiality requests should be specific, justified and limited to material that truly needs protection.

This case is most useful as a guide to the mechanics of settling a funded shareholder class action. It does not create a new privacy rule, and it does not finally determine whether CIMIC breached continuous disclosure or misleading conduct laws. Instead, it shows how the Federal Court supervises a compromise once the parties have agreed to settle.

For listed companies and businesses with investor-facing communications, the broader commercial message is still significant. Alleged disclosure failures can generate long-running litigation risk, substantial settlement pressure and close judicial scrutiny of any proposed compromise. The proceeding began in 2020 and settlement approval was not decided until April 2025. Even on a no-admissions basis, the settlement amount was substantial.

If your business is defending a class action, prepare early for the settlement approval stage. That means thinking about the evidence needed to support the settlement, the proposed distribution method, the treatment of registered and unregistered group members, the likely objections, the cost evidence, and any confidentiality issues. If your business may be a claimant or group member in a class action, do not ignore notices. Registration and opt out deadlines can directly affect whether you receive any payment.

Businesses should also note the release and bar order structure. The settlement was designed to resolve the proceeding in exchange for releases in favour of CIMIC and related entities, with final dismissal and bar orders to be sought after administration of the settlement scheme. That is a reminder that settlement documentation and final orders need to be read together, not in isolation.

A common question is whether settlement approval means the respondent admitted wrongdoing. In this case, no. The settlement was expressly on a no-admissions basis. Another common question is whether all group members automatically share in a settlement. Again, no. Here, the Court approved a scheme under which only registered group members, plus certain deemed-registered late registrants, could receive a distribution.

Businesses also often ask whether confidentiality can keep the settlement process out of public view. The answer is only partly. The Court may protect specific sensitive material, but it will usually require a public record to remain available in redacted form. Finally, businesses sometimes assume that once a settlement amount is agreed, the rest is administrative. This case shows that assumption is wrong. Costs, funding commission, objections, notices, registration status and final bar orders can all materially affect the outcome.

This page is based on the Federal Court judgment and orders in Miciulis v Cimic Group Limited [2025] FCA 307 dated 4 April 2025. The published material identifies the case as a settlement approval application in a securities class action and includes detailed orders about settlement approval, costs, funding, participation and confidentiality.

The published reasons available here are truncated before the full analysis is reproduced. That means some detail about the Court's treatment of objections and the full fairness reasoning is not visible in the text used for this page. The core procedural story, orders and outcome are, however, clear from the published material.