Brewster v BMW Australia Ltd [2020] NSWCA 272

Court of Appeal Supreme Court New South Wales 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 54 Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; [2009] HCA 23 Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; [2013] HCA 53 R v Richards [2017] QCA 299 Searle v Commonwealth of Australia (2019) 100 NSWLR 55; [2019] NSWCA 127 Wurridjal v Commonwealth (2009) 237 CLR 309; [2009] HCA 2 Category: Principal judgment Parties: Owen Brewster (Plaintiff/First Cross-Defendant) Regency Funding Pty Ltd (Second Cross-Defendant) BMW Australia Ltd (Defendant/Cross-Claimant) Representation: Counsel: