Tyro Class Action

Settlement Information

Settlemnt Approval Application

Information with respect to the settlement of the proceedings and settlement approval application

Update on Tyro Class Action

The class action (Tyro Class Action) relates to an outage to Tyro’s EFTPOS facility in January 2021 (the Outage).

The solicitors acting for the Applicant, Spozac Pty Limited as trustee for the LDB Family Trust t/as Not Just Cakes (ACN 112 100 231) (Applicant) are Bannister Law Class Actions (BLCA). A company called CHC Investment Fund Pty Ltd as trustee for the CHC Investment Fund Unit Trust (ACN 643 822 799) (CHC) has funded the case.

As you may have heard or read, terms to settle the Tyro Class Action have been agreed between the Applicant and Tyro. However, because this is a class action, a judge of the Federal Court must decide whether it is a fair and reasonable settlement for the group members. That judge will have a hearing to decide whether the settlement is fair and reasonable and whether to approve the settlement at 9.30 am on 19 May 2023.

What is the proposed Settlement

1.Under the proposed settlement of the Tyro Class Action:

(a) Tyro will pay $5 million (without admitting liability) to settle all claims made by group members

in the Tyro Class Action for compensation for loss or damage suffered due to the Outage;

(b) the Applicant intends to apply to the Court for an order which, if made, has the effect of providing
that any group member:

(i) who had not opted out of this proceeding by 30 October 2022;
(ii) had not registered with BLCA to participate in the settlement in accordance with the
Court’s orders made on 22 July 2022; or
(iii) was not a “Late Registrant” (being a group member who registered between 31 October
and 1 December 2022), will remain a group member for all purposes of this proceeding, but shall not, without leave of the Court, be permitted to seek any benefit pursuant to the settlement (subject to Court approval).

(i) reimbursement of approximately $1.975 million for the costs and expenses that CHC has
incurred and is estimated to incur in funding the Tyro Class Action, primarily comprised of
fees paid to the solicitors, barristers and expert witnesses that were involved in the case
(which will be reimbursed to CHC); and
(ii) payment of $1 million (being 20% of $5 million) to CHC as compensation for its role in
funding the litigation, if the Court approves that amount being paid to CHC.

(d) before any of the settlement sum goes to the Group Members, the Applicant will also seek orders
that there be payment of:

(i) $25,000 to the Settlement Administrators for their estimated costs incurred in
administering the settlement distribution; and
(ii) $20,000 to the Applicant for its time and expense in representing group members.

(e) what is left (which is estimated by the applicant’s lawyers to be about $2 million) is to be paid to
Group Members, according to a formula.

2. Whether the above payments will be paid and their amount are subject to the Court’s approval. At the
hearing on 19 May 2023, the Court will hear argument about whether it has the power to approve the
compensation payment sought by CHC and if so, the amount that should be approved in the Court’s
discretion. It will also hear argument about the amount of reimbursement sought by CHC for costs and
expenses.

Are You Eligible to Participate in the Settlement

You are a Group Member if:

(a) you have signed Tyro service agreements with Tyro;
(b) you were a customer of Tyro as at 5 January 2021;
(c) you have suffered loss or damage due to the Outage; and
(d) you were not and are not a director, officer or close associate of Tyro, or a judge or a judicial
registrar of the Federal Court of Australia.

However, the Applicant intends to seek an order from the Court at the hearing on 19 May 2023 that only
those Group Members who registered their claims with BLCA on or before 30 October 2022 (or who
were “Late Registrants”, meaning that they registered their claim with BLCA in the period between 30
October 2022 and 1 December 2022) will be entitled to participate in the settlement and receive a share
of the amount to be distributed to Group Members. If you did not register your claim, and such an order
is made, you will not be eligible to participate in the settlement unless the Court grants you leave to
participate.

If you are unsure whether you are a Group Member, or if you did not register your claims with BLCA
before 30 October 2022 or between 30 October 2022 and 1 December 2022 and wish to seek the Court’s
leave to participate in the settlement, please make contact with BLCA using the details at the end of this
notice, or seek legal advice. You should not contact Tyro directly.

How will Registered Group Members’ share of the Settlement Sum be determined?

The proposed Settlement Distribution Scheme (SDS) provides for the distribution of the sum of $2 million to Registered Group Members, being Group Members who registered their claims with Bannister Law Class Action on or prior to 30 October 2022 (along with Group Members who registered their claims late).

The $2 million settlement sum (described in the SDS as the “Residual Settlement Sum”) will be distributed to Registered Group Members on the following basis:

All Group Members who did not register their claims with Bannister Law Class Actions will not receive a share of the settlement sum;
All Group Members who registered their claims but did not provide any supporting information with respect to their loss will not receive a share of the settlement sum;
All Group Members who participated in Tyro’s Remediation Program, received compensation from Tyro through that Program and subsequently entered into a Deed of Settlement and Release with Tyro will not receive a share of the settlement sum; and
All remaining Registered Group Members (being those Group Members who registered their claims with Bannister Law Class Actions and provided supporting information to prove their loss, described in the SDS as “Eligible Group Members”) will receive an equal share of the settlement sum (described in the SDS as a “Scheme Payment”). Payments will be determined using the following formula:

Residual Settlement Sum

Scheme Payment =

Number of Eligible Group Members

The complete SDS will be published on this website by 8 May 2023.

Where can I find the Settlement Notice:

You can download the settlement notice below:

Settlement Notice (Including the Notice to Object) made 20 April 2023

About the action

What is the Tyro Class Action?

The Tyro Class Action relates to an outage to Tyro's EFTPOS facility in January 2021.

The Applicant alleges that Tyro:

(a) engaged in misleading or deceptive conduct and made false or misleading representations in contravention of the Australian Consumer Law (ACL) by making representations through its website and communications with prospective customers as to the reliability and availability of its EFTPOS facility and technical support services;

(b) breached a number of consumer guarantees contained in the ACL with respect to its EFTPOS terminals and the services it supplied to customers; and

The Tyro Class Action seeks compensation for customers of Tyro who were affected by the Outage. Tyro denies liability in the proceedings.

What is a class action?

A class action is an action that is brought by one person (the Applicant) on his or her own behalf and on behalf of Group Members against another person (the Respondent). Class actions are commenced in circumstances where the Applicant and the Group Members have similar claims against the Respondent.

Group Members are “bound” by the outcome in the class action, unless they have opted out of the proceeding. A binding result can happen in two ways:

(a) in a judgment following trial, in which the Court will decide various factual and legal issues in respect of the claims made by the Applicant and persons who then remain as Group Members. Unless those decisions are successfully appealed, they bind the Applicant, Group Members and the Respondent. Importantly, if there are other proceedings between a person, who was a Group Member when the judgment was given, and the Respondent, it may be that neither of them will be permitted to raise arguments in that proceeding which are inconsistent with a factual or legal issue decided in the class action; or

(b) in a settlement of a class action. Where the settlement provides for compensation to Group Members it may extinguish all rights to compensation which a person who then remains as a Group Member might have against the Respondent which arise in any way out of the events or transactions which are the subject-matter of the class action.

If there is a judgment or a settlement of the Tyro Class Action and you are then a Group Member, you will not be able to pursue the same claims and may not be able to pursue similar or related claims against Tyro in other legal proceedings. If you consider that you have claims against Tyro which are based on your individual circumstances or otherwise additional to the claims described in the Tyro Class Action, then it is important that you seek independent legal advice about the potential binding effects of the class action before the deadline to register your interest to participate in any settlement or to opt out.

Is a Group Member liable for costs and charges?

Group Members in a class action are not individually responsible for the legal costs associated with bringing the class action. The costs of running the class action are being borne in the first instance by a litigation funder (CHC Investment Fund Pty Limited as trustee for the CHC Investment Fund Unit Trust (CHC)) and Bannister Law Class Actions.

If the class action is successful (that is, if money compensation is recovered through a judgment or settlement), the Court will be asked to distribute the legal costs incurred by Bannister Law Class Actions and CHC, and the funding costs which Group Members have agreed to pay CHC, from the money recovered equally among all persons who have benefitted from the class action. The effect of any such order, if made, would be that all Group Members who benefit will contribute to the legal and funding costs.

If the class action is unsuccessful, Group Members will have no liability to pay any legal and funding costs.

If the preparation or finalisation of your personal claim requires work to be done in relation to issues that are specific to your claim, you can engage Bannister Law Class Actions or other lawyers to do that work for you. This additional work may involve further fees payable by you.

Court documents

The relevant Court documents in this case may be accessed through the hyperlinks below. This page will be updated with new Court documents after they have been filed with the Court.

Pleadings

Notices

Orders

Contact

Contact
Bannister Law
Class Actions

OUR ADDRESS

74b New Beach Road, Darling Point Sydney NSW 2027

Email: tyroclassaction@bl.com.au

Tel: 02 8231 6529

Web: www.bannisterlaw.com.au