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: Ainsworth v 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)