Bailey v BMW Sydney Pty Ltd - [2020] NSWDC 53

District Court

New South Wales

Medium Neutral Citation: Bailey v BMW Sydney Pty Ltd & Anor [2020] NSWDC 53
Hearing dates: 26, 27, 28 February, 2 March 2020
Date of orders: 19 March 2020
Decision date: 19 March 2020
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
(1)   Judgment for the defendants.
(2)   Order the plaintiff to pay the costs of both defendants.
(3)   Judgment for the cross-claimant against the cross-defendant for $77,361.89.
(4)   Order the cross-defendant to pay the cross-claimant’s costs.

Catchwords: MISLEADING OR DECEPTIVE CONDUCT – whether representations were made – whether representations were with respect to future matters –whether the car suffered from defects – whether there was a failure to promptly service and supply parts for the car – whether representations about the car were misleading or deceptive – damages
Legislation Cited: Australian Consumer Law, ss 4, 18, 236, 278(2)
Competition and Consumer Act 2010 (Cth), Sch 2
s 52 of the Trade Practices Act 1974 (Cth)
Cases Cited: Australian Competition and Consumer Commissioner v Kimberly-Clark Australia Pty Limited [2019] FCA 992
Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60; (2004) 218 CLR 592
Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304
Henville v Walker [2001] HCA 52; (2001) 206 CLR 459
I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41; (2002) 210 CLR 109
March v Stramare E& Pty Limited [1991] HCA 12; (1991) 171 CLR 506
Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494
Reiffel v ACN 075 839 226 Limited [2003] FCA 194; (2003) 132 FCR 437
Wardley Australia Limited v Western Australia (1992) 175 CLR 514
Australian Competition and Consumer Commission v Audi Australia Pty Limited [2007] FCA 1990
Australian Competition and Consumer Commission v GM Holden Limited [2008] FCA 1428
Texts Cited: Millers Australian Competition and Consumer Law Annotated, 41st Edition, 2019
Category: Principal judgment
Parties: Bailey Bailey (Plaintiff)
BMW Sydney Pty Limited (First Defendant)
BMW Australia Finance Limited (Second Defendant)
Representation:
Counsel:
G Colman (Plaintiff)
M Gunning (Defendants)
Solicitors:
Stevens Vuaran (Plaintiff)
Mills Oakley (Defendants)

File Number(s): 2018/30297

Judgment

Introduction

In April 2013 the plaintiff Mr Bailey bought a BMW X5 motor vehicle from the first defendant BMW Sydney Pty Limited (BMW Sydney). The purchase of the vehicle was financed by the second defendant BMW Australia Finance Limited (BMW Finance). Mr Bailey drove the car between April 2013 and December 2018 when it was repossessed by BMW Finance. He alleges that he was induced to purchase the car through misleading or deceptive conduct on the part of BMW Sydney. He alleges that the car suffered from a number of defects. He also alleges that BMW Sydney failed to promptly service and provide parts for the car. He claims damages arising from the alleged misleading or deceptive conduct.
The finance on the car provided by BMW Finance required Mr Bailey to pay 60 monthly payments. The last…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWDC 53
Decision Date: 19 March 2020

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Bailey v BMW Sydney Pty Ltd involved a dispute between a car owner and a dealership regarding the sale of a vehicle. The plaintiff, Mr Bailey, alleged that the defendants, BMW Sydney and BMW Group Australia, engaged in misleading or deceptive conduct under section 18 of the Australian Consumer Law. He claimed that the vehicle had defects, that the dealership failed to promptly service and supply parts, and that the representations made about the car were misleading or deceptive. The case also involved a cross-claim by BMW Group Australia against BMW Sydney.

The central legal issues before the court were whether any representations were made by the defendants, if those representations were with respect to future matters, whether the car suffered from defects, whether there was a failure to promptly service and supply parts, and if the representations made were misleading or deceptive. Additionally, the court needed to determine whether the plaintiff was entitled to damages for any misleading or deceptive conduct.

The court found that the defendants did not engage in misleading or deceptive conduct. It held that the plaintiff had not established that any representations were made by the defendants, particularly with respect to future matters. The court further determined that the car did not suffer from defects and that there was no failure to promptly service and supply parts. Consequently, the plaintiff's claims were dismissed. The cross-claim by BMW Group Australia against BMW Sydney was successful, and the court ordered BMW Sydney to pay BMW Group Australia $77,361.89. The court also ordered the plaintiff to pay the costs of both defendants and the cross-claimant to pay the costs of the cross-defendant.

Orders

Orders of the court

(1) Judgment for the defendants.

(2) Order the plaintiff to pay the costs of both defendants.

(3) Judgment for the cross-claimant against the cross-defendant for $77,361.89.

(4) Order the cross-defendant to pay the cross-claimant’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bailey v BMW Sydney Pty Ltd & Anor [2020] NSWDC 53
Hearing dates:	26, 27, 28 February, 2 March 2020
Date of orders:	19 March 2020
Decision date:	19 March 2020
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) Judgment for the defendants. (2) Order the plaintiff to pay the costs of both defendants. (3) Judgment for the cross-claimant against the cross-defendant for $77,361.89. (4) Order the cross-defendant to pay the cross-claimant’s costs.
Catchwords:	MISLEADING OR DECEPTIVE CONDUCT – whether representations were made – whether representations were with respect to future matters –whether the car suffered from defects – whether there was a failure to promptly service and supply parts for the car – whether representations about the car were misleading or deceptive – damages
Legislation Cited:	Australian Consumer Law, ss 4, 18, 236, 278(2) Competition and Consumer Act 2010 (Cth), Sch 2 s 52 of the Trade Practices Act 1974 (Cth)
Cases Cited:	Australian Competition and Consumer Commissioner v Kimberly-Clark Australia Pty Limited [2019] FCA 992 Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60; (2004) 218 CLR 592 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41; (2002) 210 CLR 109 March v Stramare E& Pty Limited [1991] HCA 12; (1991) 171 CLR 506 Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 Reiffel v ACN 075 839 226 Limited [2003] FCA 194; (2003) 132 FCR 437 Wardley Australia Limited v Western Australia (1992) 175 CLR 514 Australian Competition and Consumer Commission v Audi Australia Pty Limited [2007] FCA 1990 Australian Competition and Consumer Commission v GM Holden Limited [2008] FCA 1428
Texts Cited:	Millers Australian Competition and Consumer Law Annotated, 41st Edition, 2019
Category:	Principal judgment
Parties:	Bailey Bailey (Plaintiff) BMW Sydney Pty Limited (First Defendant) BMW Australia Finance Limited (Second Defendant)
Representation:	Counsel: G Colman (Plaintiff) M Gunning (Defendants) Solicitors: Stevens Vuaran (Plaintiff) Mills Oakley (Defendants)
File Number(s):	2018/30297