Dwyer v Volkswagen Group Australia Pty Ltd t/as Volkswagen Australia [2021] NSWSC 715

Supreme Court New South Wales

Medium Neutral Citation: Dwyer v Volkswagen Group Australia Pty Ltd t/as Volkswagen Australia [2021] NSWSC 715 Hearing dates: 18-20, 24-25, 31 May and 1 June 2021 Decision date: 18 June 2021 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: The plaintiff's case fails Catchwords: CIVIL PROCEDURE – Representative proceedings – Sale of goods – claim that Volkswagen vehicles were not of acceptable quality for the purposes of s 54 of the Australian Consumer Law by reason of being fitted with driver side Takata airbags – where airbags contained a propellant ("PSAN") that had propensity to degrade when exposed to moisture and temperature fluctuations – whether plaintiff established any functionally significant propensity of the PSAN to degrade in the airbag in his vehicle such as to cause it to explode or malfunction – whether the airbag in the defendant's vehicle did not malfunction – where defendant replaced the airbag in the plaintiff's vehicle without cost – whether the plaintiff established any loss by reason of any want of acceptable quality in his vehicle Legislation Cited: Civil Procedure Act 2005 (NSW) Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law Consumer Goods (Motor Vehicles With Affected Takata Airbag Inflators and Specified Spare Parts) Recall Notice 2018 (Cth) Trade Practices Act 1974 (Cth) Cases Cited: Australian Competition and Consumer Commission v Jayco Corp Pty Ltd [2020] FCA 1672 Australian Competition and Consumer Commission v Top Snack Foods Pty Ltd [1999] FCA 752 Courtney v Medtel Pty Ltd (2003) 126 FCR 219; [2003] FCA 36 Farley v Skinner [2002] 2 AC 732 Gill v Ethicon Sarl (No 5) [2019] FCA 1905 Graham Barclay Oysters Pty Ltd v Ryan (2000) 102 FCR 307; [2000] FCA 1099 HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640; [2004] HCA 54 Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281; [1995] HCA 4 Medtel Pty Ltd v Courtney (2003) 130 FCR 182; [2003] FCAFC 151 New South Wales Lotteries Corporation Pty Ltd v Kuzmanovski (2011) 195 FCR 234; [2011] FCAFC 106 Potts v Miller (1940) 64 CLR 282 Prestige Auto Traders Australia Pty Ltd v Bonnefin [2017] NSWSC 149 Steiner v Magic Carpet Tours Pty Ltd (1984) ASC 55-366; (1984) ATPR 40-490 Wyzenbeek v Australasian Marine Imports Pty Ltd (In Liq) (2019) 272 FCR 373; [2019] FCAFC 167 Zoneff v Elcom Credit Union Ltd (1990) 94 ALR 445 Texts Cited: Concise Oxford English Dictionary, online ed, accessed 15 June 2021 Explanatory Memorandum, Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law P Herzfeld and T Prince, Interpretation, (2nd ed, 2020, Thomson Reuters) Category: Principal judgment Parties: Philip Dwyer as representative plaintiff (Plaintiff) Volkswagen Group Australia Pty Ltd trading as Volkswagen Australia (Defendant) Representation: Counsel: C R C Newlinds SC with D Barnett (Plaintiff) S J Free SC with I Ahmed and C Winnett (Defendant)