Capic v Ford Motor Company of Australia Pty Ltd [2024] HCA 39

HIGH COURT OF AUSTRALIA

GAGELER CJ,

GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ

BILJANA CAPIC APPELLANT

AND

FORD MOTOR COMPANY OF AUSTRALIA

PTY LTD RESPONDENT

Capic v Ford Motor Company of Australia Pty Ltd

[2024] HCA 39

Date of Hearing: 11 & 12 April 2024

Date of Judgment: 6 November 2024

S25/2024

ORDER

1. Appeal allowed.

2. Cross-appeal dismissed.

3. Set aside orders 1 and 7 made by the Full Court of the Federal Court of Australia on 13 December 2023 and, in their place, order that:

(a) the appeal be allowed on ground 5 and ground 8(a) of the amended notice of appeal dated 19 May 2022 and the appeal otherwise be dismissed; and

(b) order 2 made by the primary judge on 13 August 2021 in NSD 724 of 2016 be set aside and the question of the respondent's (Ms Capic's) damages be remitted for redetermination by the primary judge:

(i) in accordance with the reasons of the High Court of Australia; and

(ii) on the basis that Ms Capic is entitled to pre-judgment interest on the damages awards for excess amounts of GST, stamp duty and financing costs.

4. The respondent pay 75% of the appellant's costs of the proceedings in this Court.

On appeal from the Federal Court of Australia

Representation

F T Roughley SC with S L Gerber for the appellant (instructed by Corrs Chambers Westgarth)

S G Finch SC with M P Costello KC, T F B Farhall and M C Roberts for the respondent (instructed by Allens)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Capic v Ford Motor Company of Australia Pty Ltd

Damages – Assessment – Consumer law – Where appellant brought representative proceedings against respondent on behalf of persons who acquired motor vehicles fitted with "DPS6" transmission – Where vehicles had at least one of five defects – Where primary judge concluded vehicles did not comply with guarantee of "acceptable quality" in s 54(1) of Australian Consumer Law ("ACL") at time of supply – Where s 271(1) of ACL provides that if guarantee under s 54 is not complied with, "an affected person in relation to the goods may ... recover damages from the manufacturer" – Where s 272(1)(a) provides that "an affected person in relation to goods is entitled to recover damages for ... any reduction in the value of the goods, resulting from the failure to comply with the guarantee to which the action relates" – Where primary judge assessed damages payable under s 272(1)(a) – Where primary judge did not consider whether adverse consequences of each defect materialised in appellant's vehicle and fact that some defective components were replaced after date of supply – Where Full Court of Federal Court of Australia followed decision of Full Court in Toyota Motor Corporation Australia Ltd v Williams (2023) 296 FCR 514 – Where Full Court held subsequent events were capable of bearing on assessment of damages under s 272(1)(a) and primary judge erred in not considering information known at time of trial and appellant's use of vehicle up until time of trial – Whether Full Court erred in finding that assessment of damages under s 272(1)(a) may require departure from time of supply or adjustment to avoid "over-compensation" – Whether Full Court erred in finding that assessment of damages under s 272(1)(a) required having regard to events after time of supply.