Part A: Retainer and Costs Agreement with The People s Solicitors Page 2. Part B: Litigation Funding Agreement...Page 14

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1 Taxi Driver Class Action Retainer Agreement and Funding Agreement On signing the Retainer Agreement at Part A hereof each Registered Class Action Member hereby jointly and severally agree to retain The People s Solicitors as the Legal Service Provider for the Taxi Driver Class Action. On signing the Funding Agreement at Part B hereof each Registered Class Action Member hereby jointly and severally accept and agree to the terms and conditions of the Funding Agreement. ELECTRONIC EXECUTION: The Part A Retainer Agreement and Part B Funding Agreement are to be executed by clicking on the I accept button as directed on The Peoples Solicitors website. CONTENT Part A: Retainer and Costs Agreement with The People s Solicitors Page 2 Part B: Litigation Funding Agreement...Page 14 Part C: Definitions for Part A and Part B Agreements Page 21 1

2 Part A - Retainer Agreement PARTIES The Peoples Solicitors Pty Limited 321 South Dowling Street, Darlinghurst, NSW 2010 hereinafter referred to as The Peoples Solicitors. AND [ ] hereinafter referred to as a Registered Class Action Member or the Member. 1. Scope of Work 1.1 This Retainer is strictly limited to the Claim against Cabcharge Australia Limited (Cabcharge) and any associated entities named as Respondents in the Statement of Claim and does not extend to other possible claims against other parties or entities. This Retainer Agreement does not impose any obligation on The People s Solicitors to provide any legal service to the Member other than in relation to the claim known as The Taxi Drivers Class Action. 2. Payment for The People s Solicitors legal services 2.1 All legal fees, costs, or disbursements incurred by or on behalf of the Member and approved by LH will be paid by LH in accordance with the Funding Agreement. 2.2 The Member agrees that The People s Solicitors will render to LH bills for Legal Work and disbursements on a monthly basis, and to require that LH will pay each bill on the Member's behalf pursuant to the Funding Agreement within 30 days of its delivery, subject to any disputes regarding the bill pursuant to clause The Member agrees pursuant to the Funding Agreement that any bill for Legal Work and disbursements incurred prior to the Date of Commencement and referred to in clause 11 of this Retainer will be paid from Gross Claim Proceeds. 2.4 Charges for the reasonable Legal Work carried out by The People s Solicitors will be calculated in accordance with the standard hourly rates of The People s Solicitors specified in this clause. The People s Solicitors will charge for professional fees: (a) an hourly rate of :$ (plus 10% GST) for a senior solicitor. 2

3 (b) (c) (d) an hourly rate of :$ (plus 10% GST) for a junior solicitor. an hourly rate of :$ (plus 10% GST) for a para-legal. travelling time at the rate of :$ (plus 10% GST). These rates will be proportionately charged for work involving shorter periods less than an hour. Charges are structured in 6 minutes units. For example, the time charged for an attendance of up to 6 minutes will be 1 unit and the time charged for an attendance between 6 and 12 minutes will be 2 units. The People s Solicitors will charge for disbursements including photocopying, fees such as search fees, filing fees, barristers' fees, other enquiry fees, the costs of witnesses, expert reports and other evidence, transcript, travel and other outlays as they are incurred from time to time. 3. Acceptance of Offer 3.1 If you accept this offer you will be regarded as having entered into a costs agreement. This means you will be bound by the terms and conditions set out in this document. Acceptance may be by any one of the following ways: signing and returning a copy of this document; clicking the acceptance button on the bottom of this webpage. 4. Member s authorities and obligations 4.1 The Member authorises and directs The People s Solicitors: (a) to fulfil each of its obligations to LH as set out in this Retainer Agreement; (b) to conduct the Proceedings as a Class Action; (c) to take and act upon day-to-day instructions from LH as to the conduct of the Legal Proceedings, however in relation to the Member's Individual Work the Member may over-ride any instruction given by LH by giving instructions directly to The People s Solicitors in which case the Member shall be liable for payment of the costs associated with any such instructions; (d) to take and act upon instructions from the Registered Class Action Member unless in The People s Solicitor s reasonable professional opinion specific instructions are required from each Funded Person affected by the matter; and (e) to do anything reasonable and proper to facilitate the effective performance of thefunding Agreement according to its terms. 5. Confidentiality 5.1 Due to the special nature of the Class Action, namely that the Claim of each Registered Class Action Member and the progress of the Taxi Drivers Class Action may be affected by the actions of one Registered Class Action Member or the Applicant and The People s Solicitors agree that strict compliance in accordance with this clause is required to maintain the confidentiality of 3

4 information provided to the Applicant and to Registered Class Action Members in relation to the Legal Proceedings. 5.2 The People s Solicitor undertakes to ensure all information, communication or documents provided to it at any time by The People s Solicitors, its officers, servants or agents in relation to the Taxi Drivers Class Action is and will be treated as, confidential information within the meaning of equity and "confidential communications" or "confidential documents" within the meaning of Part 3.10 of the Evidence Act 1995 (Cth) and is subject to joint interest privilege that the Member is not at liberty to waive. The Member agrees that this is a continuing obligation and will survive the termination of this Retainer Agreement. The Member agrees not to attempt to adduce evidence of any such information, communications or documents without the express written authority of The People s Solicitors. 5.3 The obligation in this clause is a continuing obligation and survives any Termination of this Retainer Agreement and the Member agrees not to attempt to adduce evidence of any such information, communications or documents without the express written authority of The People s Solicitors. 5.4 The Member must: (a) provide full and honest instructions; (b) cooperate in the preparation of the Claim and do all that The People s Solicitors reasonably asks; (c) inform The People s Solicitors promptly of any changes to the Member's address, address, phone number or name; and (d) not discuss any aspect of the Claims, the Legal Proceedings or related issues with the media without the prior approval of The People s Solicitors. If there is a breach of any of these obligations, The People s Solicitors may terminate this Retainer Agreement forthwith. 6 Termination of Retainer Agreement 6.1 This Retainer Agreement may be terminated: (a) By The People s Solicitors: (i) pursuant to clause 5 above; (ii) upon 7 days written notice to the Member, if LH fails to pay any costs or disbursements in accordance with this Retainer Agreement or the Funding Agreement; (iii) upon 7 days written notice to the Member, if there is a notice of termination of the Funding Agreement; (iv) ceasing to be the Legal Service Provider agreed to by LH and the Member in the Legal Proceedings; (v) if the Member terminates the Funding Agreement; 4

5 (vi) upon 7 days written notice to the Member at its sole discretion; (b) By the Registered Class Action Member: (i) by filing a Notice of Opting Out of the Taxi Drivers Class Action; (ii) if there is a Settlement that relates to the Registered Class Action Member, by the Registered Class Action Member being removed from the effect of the Settlement; (iii) effecting a Settlement other than through the Taxi Drivers Class Action; by termination of the appointment of The People s Solicitors by LH on behalf of the Registered Class Action Member pursuant to the LH Funding Agreement; (c)by the Applicant: (i) by agreement with The People s Solicitors; or (ii) upon 7 days written notice to The People s Solicitors. 6.2 In the event of a termination The People s Solicitors shall remain entitled to payment of fees and disbursements for work performed from the Date of Commencement up to the effective date of termination. 6.3 The Member agrees that it will notify The People s Solicitors if it takes any of the steps set out in this clause. 6.4 The Member irrevocably agrees that The People s Solicitors shall notify LH of any Notice of Opting Out or other Termination of this Retainer Agreement by or on behalf of the Applicant or the Member. 6.5 The Member agrees, at The People s Solicitor s expense, to take all reasonable steps to recover any outstanding costs payable to The People s Solicitors by LH under the Funding Agreement. 7. Privacy Protection 7.1 Personal information about the Member, provided by the Member or by other sources, is protected under the Privacy Amendment (Private Sector) Act Disclosure of such information may be compelled by law (eg. under the Social Security Act). The Member also authorise The Peoples Solicitors to disclose such information where necessary to others in furtherance of the Claim (eg. within the law practice, to the Court, the other party or parties to litigation, to valuers, experts, barristers etc). 8. GST 8.1 All rates, charges, expenses etc in this document are GST exclusive unless otherwise stated. Where the service provided is subject to GST, GST of 10% will be added. 5

6 9. Estimate of Costs An updated estimate based on the information available to The Peoples Solicitors to date will be available on request. 10. Adverse Costs Orders 10.1 A court can, and usually will, make a Adverse Costs Order in favour of a successful party to litigation against the unsuccessful party or parties. If a Adverse Costs Order is made against the Registered Class Action Member in the Legal Proceedings LH has undertaken to pay any such Adverse Costs Order pursuant to the Funding Agreement The Registered Class Action Member acknowledges that, if a Costs Order is made in favour of the Registered Class Action Member in the Legal Proceedings, the amount that the Registered Class Action Member recovers from the Respondents in respect of such Costs Order will not necessarily cover the whole of, and may be considerably less than, the total amount of the legal costs and disbursements payable under the terms of this Retainer Agreement. The People s Solicitors estimates that the amount which the Registered Class Action Member would recover from the Respondents in respect of such a Costs Order would be between 50% and 60% of the total legal costs and disbursements payable under the terms of this Retainer. Under the Funding Agreement any costs recovered from the Respondents form part of the Gross Resolution Sum for the purposes of calculating the Indemnity Fee payable to LH in accordance with the terms of the Funding Agreement. 11. Billing arrangements and Commencement Date Billing Arrangements 11.1 A copy of each bill delivered by The People s Solicitors to LH pursuant to this Retainer Agreement will be available for inspection by the Registered Class Action Member at the offices of The People s Solicitors The Registered Class Action Member acknowledges that: (a) disclosure of information contained in each bill may offer strategic or tactical advantages to Respondent; (b) the whole of the information contained in each bill will be treated by the Registered Class Action Member as strictly confidential; (c) the Registered Class Action Member will not disclose information contained in any bill to any other person save for the legal or financial advisors of the Registered Class Action Member for the purpose of obtaining legal or financial advice; 6

7 (d) the Registered Class Action Member hereby irrevocably consents to the making of orders restraining the Registered Class Action Member from disclosing information contained in any bill to any person The Legal Profession Act (NSW) gives the Registered Class Action Member the right to apply to the Supreme Court of NSW to have the bill of costs assessed for fairness and reasonableness by a Costs Assessor, or to apply to a Costs Assessor to have a costs agreement set aside on the basis that the costs agreement is not fair, just or reasonable, or to refer a costs dispute to mediation. An application for assessment must be done within 60 days after: (a) receipt of the bill of costs; or (b) a request for payment of the costs was made by The People s Solicitors; or (c) the costs were paid in full; whichever is the earliest The Registered Class Action Member is entitled to request, at reasonable intervals, a written report of the progress of the Legal Proceedings, and/or a written report of the legal costs incurred in the prosecution of the Claim to date, or since the last bill The People s Solicitors and the Registered Class Action Member agree that any right or entitlement of the Registered Class Action Member described in this clause may be exercised by LH on behalf of the Registered Class Action Member. Commencement Date 11.6 The liability for payment of The Peoples Solicitors costs in terms of this Retainer Agreement shall commence on the date agreed between The Peoples Solicitors and LH. The Peoples Solicitors will be reimbursed from the gross Resolution Sum for Costs incurred between the 10 th December 2010 and the commencement date as agreed with LH. 12 Interest 12.1 Once The People s Solicitors have issued a bill of costs, if the bill remains unpaid for 30 days after issue The People s Solicitors may charge interest on the unpaid amount of the bill of costs at a rate that is equal to the Cash Rate Target, as fixed by the Reserve Bank of Australia, plus 2%, from the period beginning 30 days after the date the bill is delivered by The People s Solicitors. 13 Settlement and Settlement Negotiations 13.1 The Registered Class Action Member acknowledges and agrees that Settlement of the Legal Proceedings may be negotiated by The People s Solicitors acting on instructions from the Registered Class Action Member, 7

8 subject to the consent of LH in accordance with the Funding Agreement and Part IVA of the Federal Court of Australia Act 1976 (Cth) governing the settlement of Class Actions. 14 Authority to receive and apply Gross Resolution Sum 14.1 The People s Solicitors is authorised to receive any Gross Resolution Sum on behalf of the Registered Class Action Member and upon receipt, immediately to pay the Gross Resolution Sum into an account kept for that purpose and disburse the Gross Resolution Sum in accordance with the Funding Agreement and this Retainer Agreement. 15 Authorisations and directions by the Member to The People s Solicitors regarding LH 15.1 The People s Solicitors will: (a) act consistently with the terms of the LH Funding Agreement; and (b) do all things which the Funding Agreement contemplates that The People s Solicitors will do. 16 Reporting 16.1 The People s Solicitors will inform LH in writing of: (a) the names of the lawyers who it is proposed will provide the Legal Work, including any lawyers employed by law practices retained under clause R; (b) the hourly rates of those lawyers (inclusive of GST); (c) the hourly and daily rates of barristers retained or proposed to be retained (inclusive of GST); (d) its estimate of fees and disbursements to prosecute the Claims (separately identifying the estimated fees of The People s Solicitors, the barristers and the experts if any, by reference to each event in the proceedings) as soon as reasonably practicable The People s Solicitors will keep LH fully informed of all matters concerning the Claims and the Proceedings, including any mediation and settlement discussions, and will provide all necessary information and advice in order to facilitate LH s provision of informed instructions and to enable it to manage the prosecution of the Claim and the Legal Proceedings generally on behalf of the Registered Class Action Member If, after the Date of Commencement, The People s Solicitors become aware of any information which has or may have a material impact on the Claims, the Proceedings, or the potential for any judgment sum to be recovered, The People s Solicitors will immediately inform LH of that information. 8

9 16.4 Unless otherwise agreed in writing, The People s Solicitors will provide a quarterly report, at the end of March, June, September and December to LH which: (a) identifies any change to the previous quarterly report and any significant developments; (b) reviews the issues relevant to liability and quantum; and (c) provides advice in respect of any proposed changes to the merits of the Claim or the prospects of success. 17 Costs and Disbursements Legal Work 17.1 The People s Solicitors will charge for the Legal Work provided by reference to the time reasonably and properly spent at the hourly rates. Detailed time records must be kept to facilitate time details being provided in accordance with this clause. The People s Solicitors will charge for disbursements reasonably and properly incurred for the sole purpose of the Legal Proceedings at the amounts paid for such disbursements No fee will be charged by The People s Solicitors other than in accordance with the Budget approved by LH or for any fee earners, other than those notified to LH, without the prior written consent of LH. LH will not be liable to pay the fees of any barristers, experts or law practices retained other than those notified to LH pursuant to this clause or those briefed or retained with LH s written consent The People s Solicitors will provide LH with a period of 30 days from the delivery of any bill to dispute whether this time was reasonably and properly spent or the disbursements reasonably incurred. After this period has elapsed, LH will be taken to have accepted that the time and disbursements were reasonable and proper If a dispute arises between LH and The People s Solicitors relating to whether any time spent was reasonably and properly spent or disbursements were reasonably incurred by The People s Solicitors and such a dispute cannot be resolved between LH and The People s Solicitors, such dispute shall be referred to senior counsel in the proceedings, or if he or she is not available to another senior member of counsel whom he or she nominates, for resolution. The People s Solicitors agrees to accept the decision of senior counsel or his or her nominee in relation to any such dispute as final and binding, provided that LH also agrees to the same. The People s Solicitors will reissue to LH any statement provided pursuant to this clause, if it requires revision in light of any decision pursuant to this clause. LH and The People s Solicitors will bear the costs of any such referral on an equal basis. 9

10 Construction of website and management of database for Members of the Class Action 17.5 The People s Solicitors will charge for the work relating to the construction of the website and management of database for class action Members provided by reference to the time reasonably and properly spent at the hourly rates. Detailed time records must be kept to facilitate time details being provided in accordance with this clause 18 Bills 18.1 The People s Solicitors will deliver monthly bills to LH with a copy to any Representative, accompanied by: (a) the details contemplated by this clause; (b) a summary of the time details by their total cost (in a single dollar figure) allocation to each relevant event in the proceedings; and (c) an invoice for disbursements (incurred from the Date of Commencement) The time details for fees of The People s Solicitors must include, for each time entry: (a) the date upon which the time was spent (b) which solicitor or paralegal spent the time; and (c) the time spent in six minute units. 19 Insurance 19.1 The People s Solicitors will maintain professional indemnity insurance in an amount of at least $10 million for the duration of this Retainer Agreement plus three years and will provide evidence of the insurance to LH on LH s request from time to time. 20 Persons responsible and legal costs 20.1 Mr Kingsley Lui will be responsible for the Claim. Other persons may assist the above-named from time to time with the conduct of Legal Proceedings. Please see The People s Solicitors disclosed charge out rates. Liability for payment of legal costs and disbursements in terms of this Retainer Agreement will be paid in accordance with the Funding Agreement The Peoples Solicitors acknowledge it has no recourse against the Registered Class Action Member for payment of any legal costs or disbursements incurred in prosecution of the Legal Proceedings or otherwise. 21 Substantial changes to disclosure 10

11 The Applicant and Registered Class Action Members will be informed, as soon as is reasonably practicable, of any substantial changes to anything contained in this disclosure document. 22 Engagement of another law practice (e.g. barrister) 22.1 It may be necessary for The People s Solicitors to engage, on behalf of the Applicant and the Registered Class Action Members, the services of another law practice to provide specialist advice or services, including advocacy services, or to act as the People s Solcitors agent. The People s Solcitors will consult the Applicant and the Registered Class Action Members as to the terms of that law practice s engagement The law practice engaged by The Peoples Solicitors will disclose costs in a similar manner as that of The People s Solicitors in this Retainer Agreement and The Peoples Solicitors will disclose those costs to the Applicant and the Registered Class Action Members 23 Applicable law 23.1 The law of NSW applies to legal costs regarding this matter. However, see your rights in the accompanying Form. 24 Definitions 24.1 The definitions set out in Part C shall be the definitions to be applied to the defined terms in this Retainer Agreement. 11

12 Form of disclosure of costs to clients (Clause 109A Legal Profession Regulation Form 2) Legal costs Member s right to know Members have the right to: Negotiate a costs agreement with us Receive a bill of costs from us Request an itemized bill of costs after you receive a lump sum bill from us Request written reports about the progress of your matter and the costs incurred in your matter Apply for costs to be assessed within 12 months if you are unhappy with our costs Apply for the costs agreement to be set aside Accept or reject any offer we make for an interstate costs law to apply to your matter Notify us that you require an interstate costs law to apply to your matter. For more information about your rights, please read the facts sheet titled Legal Costs your right to know. You can ask us for a copy, or obtain it from your local law society or law institute (or download it from their website). 12

13 Part B - Funding Agreement PARTIES AGREEMENT is between Litman Holdings Pty Limited ACN of Suite 2, Level George Street, Sydney NSW 2001 hereinafter referred to as LH. AND [ ] hereinafter referred to as a Registered Class Action Member or the Member. Background A. Persons and entities have registered their interest in joining the Taxi Drivers Class Action by lodging a notification of interest which has been received and processed by The Peoples Solicitors. B. To assist with the costs of prosecution of the proposed Taxi Drivers Class Action the Member has agree to enter into this Funding Agreement. C. At the request of the Member LH has agreed in consideration for payment of an Indemnity Fee to offer to provide funding in accordance with the Budget as agreed from time to time with The Peoples Solicitors to fund the Legal Costs and Outlays incurred in prosecution of the Legal Proceedings upon the terms and conditions more particularly set out in this Funding Agreement and the approved Budget. D. The Member by entering into this Funding Agreement acknowledges that LH may also supply services and funding to other parties in relation to the subject matter of the Taxi Drivers Class Action claim and generally otherwise. IT IS AGREED 1 Interpretation 1.1 Words importing the singular number include the plural and vice versa. Any gender includes the other genders. Any reference to a person includes a reference to a corporation, firm, authority, government or governmental agency 1.2 A reference to legislation or to a legislative provision includes all regulations, orders, proclamations, notices or other requirements under that legislation or legislative provision. It also includes any amendments, modifications or reenactments of that legislation or legislative provision and any legislation or 13

14 legislative provision substituted for, and any statutory instrument issued under, that legislation or legislative provision. 1.3 The clause headings in, and index to, this Funding Agreement are for reference purposes only and do not in any way influence or affect the meaning of this Agreement. 1.4 A reference to any deed, agreement, licence, document or other instrument (including this Funding Agreement) includes a reference to that deed, agreement, licence, document or other instrument as renewed, extended, novated, varied or substituted from time to time; 1.5 A reference to any party to this Funding Agreement or to any other deed, agreement, licence, document or other instrument required under this Funding Agreement or for the purposes of this Funding Agreement includes that party s executors, administrators, substitutes, successors and permitted assigns; 1.6Where under or pursuant to this Funding Agreement or anything done under this Funding Agreement the day on or by which any act, matter of thing is to be done is not a business day such act, matter or thing must be done on the immediately succeeding business day; 1.7Where under or pursuant to this Funding Agreement or anything done under this Funding Agreement the day on or by which any act, matter or thing is to be done is the 29 th, 30 th or 31 st day of any month in which such a day does not occur, such act, matter or thing must be done on the last day of that month; 1.8Reference to clauses are references to clauses of this Funding Agreement; and 1.9A reference to winding up or bankruptcy includes bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration (as defined in Section 9 of the Corporations Act 2001) and being placed under administration (as referred to in Part 5.3A of the Corporations Act 2001), and to the circumstances and events given rise to or contributing to such condition or matters. 1.10This Funding Agreement will in all events be construed as a whole, according to its fair meaning and not strictly for or against a party merely because that party or their representative drafted the Funding Agreement. The headings, captions and titles in this Agreement are merely for reference and do not define, limit, extend or describe the scope of this Funding Agreement or any provision herein. 2 Sole Agreement 2.1 The covenants and provisions contained in this Funding Agreement exclusively and completely state the rights of the Parties. This Funding Agreement supersedes all negotiations and prior agreements, whether written or oral between the Parties. 14

15 3 Joint and Several Liability 3.1Where a Party comprises more than one person or legal entity the covenants and agreements on their part contained or implied in this Funding Agreement bind them jointly and each of them severally. 4 Legal Costs and Indemnity 4.1 Subject to all Registered Class Action Members executing a Retainer Agreement with The People s Solicitors at Part A and to LH having granted prior approval of the Retainer Agreement in so far as it operates to protect payment of the LH Indemnity Fee LH hereby indemnifies the Member from liability for agreed Legal Costs and Outlays: (a) Incurred by the Applicant in the prosecution of the Legal Proceedings in accordance with the approved Budget. (b) Funding will be provided by LH as and when required to meet payments in accordance with clause 4.1(a) which the Member hereby agrees shall be repayable to LH as a first priority payment from the Gross Resolution Sum. (c) In the event that additional funds are required in excess of the agreed Budget to continue prosecution of the Legal Proceedings LH will use all reasonable endeavours to procure such additional funds. 4.2 If during the course of the prosecution of the Legal Proceedings the Respondent apply for and obtain an order from the Court for security as to their costs within the meaning of the relevant rules of the Court, LH will provide such security for costs in whatever reasonable sum is fixed by either agreement between the Applicant and the Respondent, subject at all times to the consent of LH, or as is fixed by order of the Court LH hereby indemnifies the Member against any Adverse Cost 0rders made by the Federal Court against the Member during the currency of this Funding Agreement but not otherwise. Liability for payment in terms of this clause is subject to the issue of a Certificate of Determination of Costs by an approved cost assessor. LH shall have the right to call for an independent assessment of costs the subject of an Adverse Cost Order and the lesser of the two assessments will be the sum then due and payable by LH. 5 Indemnity Fee 5.1 In consideration for LH entering into this Funding Agreement and providing funding and the indemnity in terms of clause 4.1 and 4.2 hereof, each Registered Class Action Member by entering into this Agreement irrevocably agrees that LH shall be repaid in full without deduction from the Gross Resolution Sum all payments paid by LH in accordance with the provisions of this Funding 15

16 Agreement plus an Indemnity Fee ( Indemnity Fee ) equal to 35% of the Applicant s and 35% of each Registered Class Action Member s share of the Gross Resolution Sum. 5.2 Each Registered Class Action Members by entering into this Agreement irrevocably authorises and direct The People s Solicitors to pay LH from the Gross Resolution Sum the Indemnity Fee in accordance with clause 5 hereof and repay all payments made by LH in accordance with clause 4 hereof on receipt of the Gross Resolution Sum and such payments shall rank as a first priority charge over the Gross Resolution Sum and shall be made within 7 days of The Peoples Solicitors (or any party on behalf of the Applicant and theall Registered Class Action Members either jointly or severally directly or indirectly receiving their respective share of the Gross Resolution Sum. 5.3 The Applicant s and Registered Class Action Member s liability to repay to LH payments made in terms of clause 4 and to pay to LH the Indemnity Fee in terms of clause 5 is subject to and conditional upon the successful Resolution of the Legal Proceedings and receipt either directly or indirectly by the Applicant and Registered Class Action Members of a Gross Resolution Sum. 6 Legal Service Provider and Counsel 6.1 Prosecution of the Legal Proceedings shall be conducted by the appointed Legal Service Provider and Counsel appointed by the Applicant in consultation with LH in terms this Funding Agreement and the Retainer Agreement. 7 Conduct of Claim 7.1 For so long as this Funding Agreement remains in place the Member agrees to instruct the Applicant and The Peoples Solicitors as follows: (a) Reports: The Applicant shall provide to LH a monthly report as to the status of the prosecution including an up to date timetable of the steps to be taken and any advice received from Counsel or The People s Solicitors. (b) Settlement: To obtain the written consent of LH prior to acceptance of any offer of settlement or compromise for a Gross Resolution Sum of less than 50% on behalf of the Applicant and Registered Class Action Members. For example if the Applicant s and all Registered Class Action Members total claim sum is $10 million dollars the Member shall instruct the Applicant to obtain the written consent of LH prior to accepting on behalf of its self and Registered Class Action Members a Gross Resolution Sum of less than $5 million dollars. 7.2 In so far as the terms and conditions of any settlement or compromise has or may have an adverse impact on the obligations of LH in terms of this Funding Agreement or on the amount of the Indemnity Fee payable to LH in terms of this Funding Agreement the Member shall consult with LH and the Member shall 16

17 procure the Applicant to also consult with LH. After any consultation, or after the expiry of 14 days from the date at which the Applicant and the Member first write to LH to commence any consultation and irrespective of whether or not the Applicant and LH are in agreement with any proposed settlement for a Gross Resolution Sum greater than 50% that is recommended by Senior Counsel, the Applicant and the member at their sole discretion can settle with the Respondent provided the Gross Resolution Sum to be received is sufficient to repay LH all sums advanced and all payments that would otherwise be payable to LH as at the date of settlement including the Indemnity Fee in accordance with clause 5 hereof. 8 LH s right to terminate Material Adverse Change 8.1 LH shall have the right to terminate this Funding Agreement if in the sole and absolute opinion of LH there has been a Material Adverse Change in the merits of the Claim or in the prospects of success or if in the sole and absolute opinion of LH a material adverse event is deemed to have taken place at any time during the term of the Funding Agreement,or (a) LH provides written notice to the Applicant that an event or circumstance has occurred which in LH s sole opinion, renders uneconomic the cost of continuing prosecution of the Legal Proceedings by the Applicant; or (b) If either the merits of continuing with the prosecution of the Legal Proceedings or the prospects of success in terms of the objectives of the Legal Proceedings in the sole and absolute opinion of LH materially change at any time. 8.2 In the event of termination by LH in terms of this clause 8 LH shall remain entitled to repayment of all payments made by LH up to the date of termination from any Gross Claim Proceeds received by the Applicant or the Member either directly or indirectly following termination including a pro rata share of any Indemnity Fee based on the proportion total payments made by LH bears in relation to the total Legal Costs and Outlays paid by or on behalf of the Applicant and the Member as at the date of Resolution. 8.3 LH will remain liable for payments due and payable in terms of clause 4 of this Funding Agreement up to the date of termination but not otherwise. 9 Member s right to terminate 9.1 If LH fails to make payments under clauses 2.1 of this Funding Agreement then the Member may give 30 days written notice to LH to rectify the breach. If 17

18 LH fails to rectify the breach in accordance with the terms of any such notice, then the Member may terminate this Funding Agreement. 9.2 Following termination of this Funding Agreement, if the Member either directly or indirectly receives a payment on account of or in substitution for the Gross Resolution Sum from the Respondent or otherwise, LH shall be entitled to be repaid all payments LH has paid or applied under clause 4 of this Funding Agreement. 9.3 The rights and obligations of LH as set out in this Funding Agreement with respect to repayment of payments paid or applied by LH for Legal Costs and Outlays shall survive termination of this Funding Agreement together with the right to a proportionate share of the Indemnity Fee based on the proportion the payments made by LH as at the date of termination represent in relation to the total cost of prosecution of the Legal Proceedings to the time of Resolution. 10 Confidentiality 10.1 The Parties to this Funding Agreement agree that the terms and conditions of this Funding Agreement shall remain confidential in all respects and in relation to Confidential Information each Party agrees: (a) to use the Confidential Information only for the purposes of the Funding Agreement; and (b) to keep that Confidential Information confidential and not disclose it or allow it to be disclosed to any third party except: (i) with the consent of the other party (ii) to officers, employees and consultants or advisors of a Party who have a need to know (and only to the extent that each has a need to know) and are aware that the Confidential Information must be kept confidential The Parties must take or cause to be taken reasonable precautions necessary to maintain the secrecy and confidentiality of the Confidential Information The obligations of confidentiality under this Funding Agreement do not extend to information that (whether before or after this Funding Agreement is executed): (a) is public knowledge (other than as a result of a breach of this Funding Agreement); or (b) is required by law or court order to be disclosed and the receiving party is required to make disclosure, and to limit, as far as possible, the extent of the disclosure On termination of this Funding Agreement each Party must: (a) continue to keep confidential all Confidential Information and (b) if requested return or destroy and certify destruction of the Parties Confidential Information making the request for destruction. 18

19 10.5 The rights and obligations of the Parties set out in this Funding Agreement with respect to Confidential Information will survive termination of this Funding Agreement. 11 Power of Attorney 11.1 The Member hereby irrevocably appoints LH and each director for the time being of LH severally to be the true and lawful attorney of the Member with full power in the name of the Member to: (a) do execute and perform all and every act, deed, matter or thing which the Member has the power and right to do in the Member s capacity as a member of the Taxi Drivers Class Action and in particular in relation to negotiation and settlement of the Legal Proceedings known as the Taxi Drivers Class Action, and (b) to exercise all or any of the powers, rights and obligations of the Member with respect to the Legal Proceedings and to do, execute and perform any act, deed, matter or thing with respect to the Legal Proceedings as fully and effectively as the Member could. (c) the member hereby agrees to ratify all actions taken by the attorney in accordance with the powers granted in terms of this clause General 12.1 Non-merger: None of the terms or conditions of this Funding Agreement, nor any act, matter of thing done under or by virtue of, or in connection with, this Funding Agreement will operate as a merger of any of the rights and remedies of LH in or under this Funding Agreement or otherwise. All such rights and remedies of LH will continue in full force and effect 12.2 Statutes not to Abrogate Agreement: Unless application is mandatory by law, no statute, ordinance, proclamation, rule, order, regulation, moratorium, or decree of any governmental or other authority, present of future, will apply to this Funding Agreement so as to abrogate, extinguish, impair, diminish, fetter, delay or otherwise prejudicially affect any rights, powers, remedies or discretions given or accruing to LH under this Funding Agreement Assignment: This Funding Agreement is binding on, and operates for the benefit of, the Member and LH and their respective successors and assigns, except that the Member may not assign this Funding Agreement or any of its rights or obligations under this Funding Agreement without the prior written consent of the LH Severability and Survival of Covenants: If any provision of this Funding Agreement is, or at any time becomes, prohibited by, or unlawful under, any applicable law, regulation or other condition actually applied or otherwise becomes void or unenforceable, it will be severed from this Funding Agreement 19

20 and rendered ineffective so far as is possible without modifying the remaining provisions of this Funding Agreement. The remaining provisions will, to the extent permitted by the relevant law, regulation or other condition, continue in full force and effect Prohibition on Oral Amendments: Neither this Funding Agreement nor any provision of this Agreement may be amended, modified, waived, discharged or terminated orally Counterparts: This Funding Agreement may be executed in any number of counterparts all of which, when taken together, will constitute one and the same instrument Notices: Any notice or demand to be given under, or in relation to, this Funding Agreement will be deemed to by duly given or made if it is in writing and, in the case of the Applicant and Registered Class Action Member left at, or sent by prepaid post to, the address given by the Registered Class Action Member at the time of registration unless a Notice of Change of Address is given and if so the address specified in the Notice of Change of Address and, in the case of LH at its address set out in this Funding Agreement. Any notice or demand sent by post will be deemed to have been received by the party to whom it is addressed on the day which in the normal course of post it would have been delivered Governing Law and Submission to Jurisdiction: This Funding Agreement is governed by the law in force in New South Wales. Each party submits to the nonexclusive jurisdiction of the courts exercising jurisdiction in New South Wales, and any court that may hear appeals from any of those courts, for any proceedings in connection with this Funding Agreement 12.9 Acknowledgment. The Member acknowledges that LH recommended to that independent legal advice is obtained prior to executing this Funding Agreement as to the Funding Agreement s meaning and effect Dispute Resolution. In the event of any dispute between LH and the Member in relation to any matter arising from this Funding Agreement, in particular in relation to the conduct of the Legal Proceedings, progress or settlement of the Legal Proceedings in the first instance the dispute will be referred to a third party agreed between them or failing agreement by a person nominated by the President for the time being of the Law Society of New South Wales Cooling off Period. The Member may by written notice given to LH within 21 days after entering into this Funding Agreement withdraw from this Funding Agreement. In the event of the Member giving notice of withdrawal the withdrawing party shall have no further obligation to LH save for the obligation for 20

21 confidentiality arising in respect of information received by the withdrawing party prior to the issue of the notice to withdraw Definitions. The definitions set out in Part C shall be the definition to be applied to defined terms in the Funding Agreement. 21

22 Part C Definitions In the Retainer Agreement and the Funding Agreement, unless the contrary intention appears: (1) Advice means the written advice of the appointed Legal Service Providers in relation to the meaning and effect of the Retainer Agreement and the Funding Agreement. (2) Adverse Costs Order means an order of a court of competent jurisdiction made against the Member in respect of costs incurred by the Respondent in defence of the Legal Proceedings. (3) Applicant means the party named as the Applicant in the Legal Proceedings as identified in the Statement of Claim when filed in the Federal Court of Australia (4) Budget means the budget to be agreed from time to time between LH and The Peoples Solicitors. (5) Certificate of Determination of Costs means a certificate issues in accordance with sections 367A, 368 and 369 of the Legal Profession Act (6) Claim means the Taxi Drivers Class Action to be brought by the Applicant for and on behalf of the Applicant and all Registered Class Action Members against Cabcharge Australia Ltd for compensation for damages and losses suffered by the Applicant and each Registered Class Action Member and caused by the Respondent as a direct or indirect consequence of alleged breaches of the Trade Practices Act 1974 by the Respondent. (7) Confidential Information means any and all proprietary or non-public information disclosed by one party (the "Discloser") to the other party (the "Recipient") pursuant to the Retainer Agreement and the Funding Agreement, which is in written, graphic, machine readable or other tangible forms, or oral, perceived or intangible information, which the Discloser designates as being confidential or proprietary or which, under the circumstances surrounding disclosure, the Recipient knows or has reason to know should be treated as confidential, including without limitation, the terms and conditions of the Retainer Agreement and the Funding Agreement, including the pricing and other commercial terms set forth herein. (8) Cost Order means an order of the court made in favour of the Applicant or the Member. 22

23 (9) Funding Agreement means thegreement entered into between Litman Holdings Pty Limited and the Member in Part B hereof. (10) Funded Person means a Member that has executed the Funding Agreement referred to in Part B hereof. (11) Gross Resolution Sum means any payments received either directly or indirectly by the Applicant and Registered Class Action Members of the Legal Proceedings known as the Taxi Drivers Class Action against Cabcharge Australia Limited from the Respondent in terms of a judgment, mediator s award or by negotiated settlement in Resolution of the Claim including any sum awarded on account of costs. (12) GST has the meaning in the GST Act. (13) "GST Act" means A New Tax System (Goods and Services) Act1999 (Cth). (14) Indemnity Fee means the agreed percentage of the Gross Resolution Sum paid or payable by the Applicant and Registered Class Action Members to LH in accordance with clause 5. (15) Judgment means any judgment of a competent Court against the Respondent. (16) Judgment Amount means in relation to the Applicant and each Registered Class Action Member the amount or amounts for which the Claim is settled or for which Judgment is given, in favour of the Applicant and /or Registered Class Action Members. Judgment amount will include any ex gratia payments or dividends received by the Applicant and Registered Class Action Members in relation to the Claim including any awards against the Respondent on account of costs. (17) Legal Costs and Outlays means the costs that are incurred in the prosecution of the Taxi Drivers Class Action in accordance with bills of cost rendered by The Peoples Solicitors or an appointed legal service provider approved by LH. (18) Legal Costs and Outlays Indemnity means the funding to be provided by LH on behalf of the Member in terms of the Funding Agreement in relation to Legal Costs and Outlays that are payable or that will become payable in the future by the Member in accordance with the agreed Budget during the currency of this Funding Agreement. (19) Legal Proceedings means any and all litigation brought by the Applicant for and on behalf of the Applicant and each Registered Class 23

24 Action Member to prosecute the Claim and includes proceedings brought in contemplation of the Legal Proceedings, including without limitation proceedings for preliminary discovery. (20) Legal Work means all legal work carried out in relation to the Legal Proceedings in accordance with the Retainer Agreement. (21) Notice of Change of Address means a Notice given to The People s Solicitors via to info@peoplesolcitors.com, or mail to 321 South Darling St, Darlinghurst NSW 2010, of a change of address. The notice must include the name of the Registered Class Action Member, the address on the registration form and the new address. (22) LH means Litman Holdings Pty Limited ACN (23) Member means Registered Class Action Member (24) Notice for Opting Out means a notice in the form prescribed by the rules of Court for the purposes of opting out of the Claim as commenced under Part IVA of the Federal Court of Australia Act 1976(Cth)or by any order pursuant to the Federal Court Rules. (25) Opt Out period means any opt out period set by the Court in the proceedings within which a potential Member of the Taxi Drivers Class Action may opt out of those Legal Proceedings. (26) Material Adverse Change means any event or circumstance which LH in its sole opinion believes may render uneconomic the cost of continuing with the prosecution of the Legal Proceedings. (27) Privilege means unless the context otherwise requires means legal professional privilege and includes any joint privilege or common interest privilege. (28) Registered Class Action Members means each person or entity that has completed the class action registration process including execution of the Retainer Agreement and the Funding Agreement. (29) Related Body Corporate means any corporate entity which is related to the Applicant or Member within the meaning given to the term related in Section 9 of the Corporations Act (30) Resolution means in relation to the Claim and the Legal Proceedings receipt of a Gross Resolution Sum as a result of: (a) Judgment Amount and costs recovered pursuant to a court order; or (b) any ex gratia or other payments made to the Applicant and Registered Class Action Members, or 24

25 (c ) any amount paid to the Applicants and Registered Class Action Members in Administration, Deed of Company Arrangement or Liquidation of the Respondent. (31) "Resolution Sum" means the amount or amounts for which the Claim is settled, or for which Judgment is given, in favour of the Applicant and Registered Class Action Members in the Legal Proceedings relating to the Taxi Drivers Class Action and includes any interest and costs recovered pursuant to a Costs Order or by agreement. The Resolution Sum will include any ex-gratia payments made to the Applicant and /or Registered Class Action Members in relation to the Claim the subject of the Legal proceedings.. (32) Retainer Agreement means the agreement entered into between you and the People s Solicitors at Part A. (33) Taxi Drivers Class Action means the Legal Proceedings to be more particularly detailed in the Statement of Claim (including any amendments) to be filed in the Federal Court of Australia. (34) The Peoples Solicitors means The Peoples Solicitors Pty Limited ACN (35) Termination means a termination in accordance with clauses 6 and 7 hereof or any completion, failure, avoidance, recession, annulment or other cessation of effect of the Retainer Agreement or the Funding Agreement. 25