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.
[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
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.