Brewster v BMW Australia Ltd

Case [2020] NSWCA 272


Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Brewster v BMW Australia Ltd [2020] NSWCA 272
Hearing dates: 27–28 October 2020
Date of orders: 30 October 2020
Decision date: 30 October 2020
Before: Bathurst CJ at [1]; Bell P at [2]; Payne JA at [49]
Decision:

The Court declines to answer the following separate question at this stage of the proceedings:

“Does the Court have the power pursuant to s 173 of the Civil Procedure Act 2005 (NSW) to make an order requiring group members in this matter who have not signed a litigation funding agreement with Regency Funding Pty Ltd to pay an amount to that funder out of the proceeds of any settlement by way of return on expenditure, commission or other similar remuneration to the funder?”

and orders BMW Australia Ltd to pay Mr Brewster’s costs of the hearing in this Court.

Catchwords:

REPRESENTATIVE PROCEEDINGS – separate question – whether Supreme Court has power pursuant to s 173 of the Civil Procedure Act 2005 (NSW) to make an order requiring unfunded group members to pay an amount to that funder out of the proceeds of any settlement by way of return on expenditure, commission or other similar remuneration to the funder? – whether appropriate to answer the question prior to any settlement having been reached and without knowledge of terms of settlement or orders proposed to be made by the Court following settlement – whether the question determined by decision of High Court of Australia in BMW Australia Ltd v Brewster (2019) 94 ALJR 51; [2019] HCA 45 – different factual context of that decision – answer to separate question posed not obviously answered by majority judgments in that decision.

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 173, 175(4), 183

Federal Court of Australia Act 1976 (Cth) s 33ZE

Judiciary Act 1903 (Cth) s 78B

Cases Cited:

Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9

BMW Australia Ltd v Brewster (2019) 94 ALJR 51; [2019] HCA 45

BMW Australia Ltd v Brewster (2019) 366 ALR 171; [2019] NSWCA 35

Cantor v Audi Australia Pty Ltd (No 5) [2020] FCA 637

Duncan v New South Wales (2015) 255 CLR 388; [2015] HCA 13

FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268; [1988] HCA 13

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

Haselhurst v Toyota Motor Corporation Australia Ltd t/as Toyota Australia; Brewster v BMW Australia Ltd (2020) 101 NSWLR 890; [2020] NSWCA 66

Jones v The Queen (1989) 166 CLR 409; [1989] HCA 16

Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28

Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29

Lambert v Weichelt (1954) 28 ALJ 282

Owners of Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA…

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AGLC
Brewster v BMW Australia Ltd [2020] NSWCA 272
Case
[2020] NSWCA 272
Decision Date

CaseChat Overview and Summary

In *Brewster v BMW Australia Ltd*, the Court of Appeal of New South Wales considered a separate question posed in representative proceedings concerning the power of the Supreme Court of New South Wales to order unfunded group members to pay remuneration to a litigation funder from settlement proceeds. The question arose in the context of proceedings brought by Mr Brewster against BMW Australia Ltd.

The central legal issue before the Court was whether it possessed the power, under section 173 of the *Civil Procedure Act 2005* (NSW), to make an order requiring group members who had not entered into a litigation funding agreement to pay a portion of any settlement to the funder as a return on expenditure, commission, or similar remuneration. A further issue was whether it was appropriate to determine this question at that stage of the proceedings, given the absence of any settlement and knowledge of its terms or proposed orders.

The Court noted that the question had been considered by the High Court of Australia in a decision with the same parties, but observed that the factual context of that decision differed. The majority judgments in the High Court did not, in the Court of Appeal's view, obviously answer the specific separate question posed. Consequently, the Court of Appeal declined to answer the separate question at that stage of the proceedings.

The Court ordered that BMW Australia Ltd pay Mr Brewster’s costs of the hearing in the Court of Appeal.

Orders

Orders of the court

The Court declines to answer the following separate question at this stage of the proceedings:

“Does the Court have the power pursuant to s 173 of the Civil Procedure Act 2005 (NSW) to make an order requiring group members in this matter who have not signed a litigation funding agreement with Regency Funding Pty Ltd to pay an amount to that funder out of the proceeds of any settlement by way of return on expenditure, commission or other similar remuneration to the funder?”

and orders BMW Australia Ltd to pay Mr Brewster’s costs of the hearing in this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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