Dwyer v Volkswagen Group Australia Pty Ltd t/as Volkswagen Australia (No 2) [2021] NSWSC 1137

Supreme Court New South Wales

Medium Neutral Citation: Dwyer v Volkswagen Group Australia Pty Ltd t/as Volkswagen Australia (No 2) [2021] NSWSC 1137 Hearing dates: 31 August 2021 Date of orders: 07 September 2021 Decision date: 07 September 2021 Jurisdiction: Equity Before: Stevenson J Decision: Proceedings to be dismissed with costs; funder to be jointly and severally liable for those costs; costs to be paid on indemnity basis in relation to the Structural Break Analysis issue; common questions answered Catchwords: COSTS – representative proceedings – proceedings dismissed – whether funder to be jointly and severally liable for defendant's costs – whether defendant should have certain costs on an indemnity basis – whether plaintiff should have appreciated his case on loss and damage would fail following service of defendant's expert report – Calderbank letter – whether plaintiff unreasonably failed to accept offer CIVIL PROCEDURE – representative proceedings – common questions – how questions should be answered Cases Cited: Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 5) [2021] FCA 246 Bakers Investment Group (Australia) Pty Ltd v Caason Investments Pty Ltd [2015] VSC 644 Carter v Caason Investments Pty Ltd [2016] VSCA 236 Dwyer v Volkswagen Group Australia Pty Ltd t/as Volkswagen Australia [2021] NSWSC 715 FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340 Gore v Justice Corp Pty Ltd (2002) 119 FCR 429; [2002] FCA 354 Yu v Cao (2016) 91 NSWLR 190; [2015] NSWCA 276 Category: Consequential orders 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)