Dwyer v Volkswagen Group Australia Pty Ltd [2021] NSWSC 314

Supreme Court New South Wales

Medium Neutral Citation: Dwyer v Volkswagen Group Australia Pty Ltd [2021] NSWSC 314 Hearing dates: On the papers Date of orders: 11 December 2020 Decision date: 31 March 2021 Jurisdiction: Equity Before: Sackar J Decision: See para [8] Catchwords: COSTS — Party/Party — Court's discretion — Defendant to pay Plaintiff's costs Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Toyota Motor Corporation Australia Limited v Louise Haselhurst [2020] NSWSC 1607 Category: Costs Parties: Philip Dwyer (plaintiff) Volkswagen Group Australia Pty Ltd (defendant) Representation: Counsel: Ms E Holmes (plaintiff) S Free, IJM Ahmed (defendant)

Solicitors: Quinn Emanuel Urquhart & Sullivan (plaintiff) Clayton Utz (defendant) File Number(s): 2018/322648 Publication restriction: n/a

Judgment 1. The defendant made application for Class Closure by motion on 12 July 2019. 2. In December 2019 I determined the costs associated with a similar motion in the proceedings concerning another defendant in related proceedings: Toyota Motor Corporation Australia Limited v Louise Haselhurst [2020] NSWSC 1607. I ruled that Toyota should pay the plaintiff's costs of the motion. I also indicated I would determine other and outstanding similar motions on the papers. 3. The plaintiffs as I understand it seek similar orders in relation to all associated matters. 4. I have received a written submission from the defendant here on 3 July 2020. 5. I was reminded in those submissions of the very broad discretion in such matters: s.98 Civil Procedure Act 2005 (NSW). 6. Volkswagen appropriately concedes it was ultimately unsuccessful on the parts of the motion that dealt with class closure but that the motion and the hearing extended beyond the mere form of the notice, the method of distribution and general case management issues, the latter being the predominant theme. And further that such matters had to be dealt with anyway. 7. It was therefore submitted that rather than disentangle the various threads of costs attributable to various aspects of the motion a broad brush position should apply such that the order on these costs should be costs in the cause. 8. I do not agree. I am not persuaded as a matter of discretion that any of the factors referred to by Volkswagen are of sufficient weight to displace the usual order. In my view Volkswagen should pay the plaintiff's costs of that motion.