BMW Australia Finance Ltd v Trigas - [2022] NSWDC 279

District Court

New South Wales

Medium Neutral Citation: BMW Australia Finance Ltd v Trigas [2022] NSWDC 279
Hearing dates: 30 June 2022
Date of orders: 22 July 2022
Decision date: 22 July 2022
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
Orders on the Motion filed on 11 March 2022
(1)   The Notice of Motion filed on 11 March 2022 was dismissed at the hearing on 30 June 2022.
(2)   Order the defendant to pay the costs of Mr Shade of the Notice of Motion filed on 11 March 2022.
(3)   Decline to make a lump sum costs order.
Orders on the Notice of Motion filed on 4 April 2022
(1)   Set aside the Notice to Produce dated 28 March 2022 served by the defendant upon the plaintiff.
(2)   Appoint 26 August 2022 as the return date for a Notice to Produce to be served by the defendant upon the plaintiff, in terms similar to the Notice to Produce dated 28 March 2022.
(3)   Order that the costs of the Notice of Motion filed on 4 April 2022 be costs in the cause.
Orders on the Notice of Motion filed on 16 June 2022
(1)   Grant leave to the defendant to amend the Defence in a form similar to Annexure B to the Notice of Motion filed on 16 June 2022 subject to the discussion in this judgment of matters requiring amendment or clarification in the new pleading.
(2)   Grant leave to the defendant to file a Cross Claim in a form similar to Annexure A to the Notice of Motion filed on 16 June 2022, subject to the discussion in this judgment of matters requiring amendment or clarification in the new pleading.
(3)   Order the defendant to pay the costs of the plaintiff and of Mr Shade of the Notice of Motion filed on 16 June 2022.

Catchwords:
CIVIL PROCEDURE – application to set aside notice to produce – no valid date for production – whether notice to produce is too wide - a notice to produce is not too wide if it calls for documents relating to a particular document
CIVIL PROCEDURE – application by for leave to file cross claim – whether conduct particularised was conduct which was misleading or deceptive - incomplete particulars in pleadings – heads of damage - delay in bringing forward proposed cross claim
CIVIL PROCEDURE – application for leave to amend defence – whether fraud is pleaded in proposed amended defence - a party alleging agency must plead the origins, nature and scope of the authority of the agent – whether pleadings relating to the insurance representations bound to fail – whether proposed amended defence is an embarrassing pleading – court may give directions concerning mode of amendment
COSTS – lump sum costs order

Legislation Cited:
Australian Consumer Law, ss 18, 236, 237, 243
Civil Procedure Act 2005 (NSW), s 64
Uniform Civil Procedure Rules 2005 (NSW), rr 14.14, 14.28, 19.5, 19.6, 34.1

Cases Cited:
AJG Pty Ltd v Mobile Communications Systems…

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: [2022] NSWDC 279
Decision Date: 22 July 2022

CaseChat Overview and Summary

BMW Australia Finance Ltd commenced proceedings against Trigas in the Federal Circuit Court of Australia, seeking recovery of a debt. The dispute involved the enforceability of a security interest and related matters, including the validity of a notice to produce documents, a proposed cross-claim, and an application to amend the defence. The court was tasked with deciding whether the notice to produce was too wide, whether the proposed conduct in the cross-claim was misleading or deceptive, and whether the proposed amended defence was an embarrassing pleading. Additionally, the court considered the appropriateness of a lump sum costs order.

In addressing these issues, the court found that the notice to produce was too wide as it did not specify a valid date for production and called for documents relating to a particular document, which was overly broad. The court also held that the proposed conduct in the cross-claim did not particularise misleading or deceptive conduct, and that the proposed amended defence, while alleging fraud, did not sufficiently plead the agency's authority. The court noted the need for clarity and completeness in the pleadings, particularly regarding heads of damage and the delay in bringing forward the proposed cross-claim. Finally, the court declined to make a lump sum costs order, instead directing that the costs of the motions be costs in the cause.

The court dismissed the notice of motion filed on 11 March 2022, set aside the notice to produce dated 28 March 2022, and granted leave to the defendant to amend the defence and file a cross-claim, subject to certain conditions. The court ordered the defendant to pay the costs of the plaintiff and Mr. Shade for the notice of motion filed on 16 June 2022, and ordered the defendant to pay the costs of Mr. Shade for the notice of motion filed on 11 March 2022.

Orders

Orders of the court

Orders on the Motion filed on 11 March 2022

(1) The Notice of Motion filed on 11 March 2022 was dismissed at the hearing on 30 June 2022.

(2) Order the defendant to pay the costs of Mr Shade of the Notice of Motion filed on 11 March 2022.

(3) Decline to make a lump sum costs order.

Orders on the Notice of Motion filed on 4 April 2022

(1) Set aside the Notice to Produce dated 28 March 2022 served by the defendant upon the plaintiff.

(2) Appoint 26 August 2022 as the return date for a Notice to Produce to be served by the defendant upon the plaintiff, in terms similar to the Notice to Produce dated 28 March 2022.

(3) Order that the costs of the Notice of Motion filed on 4 April 2022 be costs in the cause.

Orders on the Notice of Motion filed on 16 June 2022

(1) Grant leave to the defendant to amend the Defence in a form similar to Annexure B to the Notice of Motion filed on 16 June 2022 subject to the discussion in this judgment of matters requiring amendment or clarification in the new pleading.

(2) Grant leave to the defendant to file a Cross Claim in a form similar to Annexure A to the Notice of Motion filed on 16 June 2022, subject to the discussion in this judgment of matters requiring amendment or clarification in the new pleading.

(3) Order the defendant to pay the costs of the plaintiff and of Mr Shade of the Notice of Motion filed on 16 June 2022.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	BMW Australia Finance Ltd v Trigas [2022] NSWDC 279
Hearing dates:	30 June 2022
Date of orders:	22 July 2022
Decision date:	22 July 2022
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	Orders on the Motion filed on 11 March 2022 (1) The Notice of Motion filed on 11 March 2022 was dismissed at the hearing on 30 June 2022. (2) Order the defendant to pay the costs of Mr Shade of the Notice of Motion filed on 11 March 2022. (3) Decline to make a lump sum costs order. Orders on the Notice of Motion filed on 4 April 2022 (1) Set aside the Notice to Produce dated 28 March 2022 served by the defendant upon the plaintiff. (2) Appoint 26 August 2022 as the return date for a Notice to Produce to be served by the defendant upon the plaintiff, in terms similar to the Notice to Produce dated 28 March 2022. (3) Order that the costs of the Notice of Motion filed on 4 April 2022 be costs in the cause. Orders on the Notice of Motion filed on 16 June 2022 (1) Grant leave to the defendant to amend the Defence in a form similar to Annexure B to the Notice of Motion filed on 16 June 2022 subject to the discussion in this judgment of matters requiring amendment or clarification in the new pleading. (2) Grant leave to the defendant to file a Cross Claim in a form similar to Annexure A to the Notice of Motion filed on 16 June 2022, subject to the discussion in this judgment of matters requiring amendment or clarification in the new pleading. (3) Order the defendant to pay the costs of the plaintiff and of Mr Shade of the Notice of Motion filed on 16 June 2022.
Catchwords:	CIVIL PROCEDURE – application to set aside notice to produce – no valid date for production – whether notice to produce is too wide - a notice to produce is not too wide if it calls for documents relating to a particular document CIVIL PROCEDURE – application by for leave to file cross claim – whether conduct particularised was conduct which was misleading or deceptive - incomplete particulars in pleadings – heads of damage - delay in bringing forward proposed cross claim CIVIL PROCEDURE – application for leave to amend defence – whether fraud is pleaded in proposed amended defence - a party alleging agency must plead the origins, nature and scope of the authority of the agent – whether pleadings relating to the insurance representations bound to fail – whether proposed amended defence is an embarrassing pleading – court may give directions concerning mode of amendment COSTS – lump sum costs order
Legislation Cited:	Australian Consumer Law, ss 18, 236, 237, 243 Civil Procedure Act 2005 (NSW), s 64 Uniform Civil Procedure Rules 2005 (NSW), rr 14.14, 14.28, 19.5, 19.6, 34.1
Cases Cited:	AJG Pty Ltd v Mobile Communications Systems…