Owen Brewster v BMW Australia Ltd - [2020] NSWSC 1261

Supreme Court

New South Wales

Medium Neutral Citation: Owen Brewster v BMW Australia Ltd [2020] NSWSC 1261
Hearing dates: 16 September 2020
Date of orders: 16 September 2020
Decision date: 16 September 2020
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
Ex tempore reasons – see para 16

Catchwords:
CIVIL PROCEDURE – class action or representative proceedings – separate determination of question of whether on its true construction s 173 of the Civil Procedure Act 2005 (NSW) authorises the making of an order by the Court requiring group members in this matter who have not signed the litigation funding agreement to pay an amount to the funder out of the proceeds of any settlement by way of return on expenditure, commission or other similar remuneration– removal of separate question to the Court of Appeal – whether leave previously granted for the filing of cross-summons seeking removal of separate question to the Court of Appeal should be revoked
DECLARATORY RELIEF – whether there is a legal controversy capable of being the subject of declaratory relief between the parties – where there was at least equivocation on the part of the plaintiffs as to whether a common fund order would be sought as some precondition to negotiations during mediation – where plaintiff says it has not had substantial discussions or come to any view as to whether there would be would be any preconditions for settlement – where plaintiff has consented to the dismissal of the interlocutory common fund motion that was on foot

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 173
Protection of the Environment Operations Act 1997 (NSW) s 212

Cases Cited:
Ainsworthv Criminal Justice Commission (1992) 175 CLR 564
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
BMW Australis Ltd v Brewster [2019] HCA 45; (2019) 94 ALJR 51
Fordham v The Environment Protection Agency [2018] NSWCA 167

Texts Cited:
n/a

Category: Procedural and other rulings
Parties: Owen Brewster (plaintiff)
BMW Australia (defendant)
Representation:
Counsel:
Ms E Holmes (plaintiff)
T Prince (defendant)
Solicitors:
Quinn Emanuel Urquhart & Sullivan (plaintiff)
Ashurst Australia (defendant)

File Number(s): 2018/9555

Judgment – ex tempore reasons

HIS HONOUR: This matter is before me this morning again by reason of a current dispute that exists between the parties as to the form of short minutes of order as a result of argument which took place before me on 31 August 2020.
On that occasion Mr Kirk SC appeared with Mr Prince and made application for a separate determination of a question in the Court of Appeal, which question has been set out as paragraph 1 of what is described as the first cross-summons. That question is as follows:

“A declaration that on its true construction s 173 of the Civil Procedure Act 2005 (NSW) does not authorise the making of an order by the Court requiring group members in this matter who have not signed the litigation funding agreement with Regency Funding Pty Ltd to pay an amount to that…

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] NSWSC 1261
Decision Date: 16 September 2020

CaseChat Overview and Summary

In the case of Owen Brewster v BMW Australia Ltd, the dispute involved the interpretation and application of section 173 of the Civil Procedure Act 2005 (NSW) in the context of a class action or representative proceeding. The primary issue was whether the court had the authority to make an order that required group members who had not signed the litigation funding agreement to pay an amount to the funder out of the proceeds of any settlement. This payment would be in the form of a return on expenditure, commission, or other similar remuneration. Additionally, the case considered whether leave previously granted for the filing of cross-summons seeking removal of a separate question to the Court of Appeal should be revoked.

The court was required to decide whether the true construction of section 173 of the Civil Procedure Act 2005 (NSW) authorised the making of such an order. The court also needed to determine whether there was a legal controversy capable of being the subject of declaratory relief between the parties, especially given the equivocation on the part of the plaintiffs as to whether a common fund order would be sought as a precondition to negotiations during mediation. The court considered whether the plaintiffs had had substantial discussions or come to any view as to whether there would be any preconditions for settlement, and whether the plaintiff had consented to the dismissal of the interlocutory common fund motion that was on foot.

The court concluded that the true construction of section 173 did not authorise the making of an order requiring group members who had not signed the litigation funding agreement to pay an amount to the funder out of the proceeds of any settlement. The court found that there was no legal controversy capable of being the subject of declaratory relief between the parties, given the equivocation on the part of the plaintiffs and their lack of substantial discussions or views on preconditions for settlement. Consequently, the court decided to revoke the leave previously granted for the filing of cross-summons seeking removal of the separate question to the Court of Appeal. The court's reasoning was based on the lack of a clear legal controversy and the plaintiffs' equivocation and lack of discussion regarding potential preconditions for settlement.

Orders