BMW Australia Finance Ltd v Trigas [2022] NSWDC 279

District Court New South Wales

Medium Neutral Citation: BMW Australia Finance Ltd v Trigas [2022] NSWDC 279 Hearing dates: 30 June 2022 Date of orders: 22 July 2022 Decision date: 22 July 2022 Jurisdiction: Civil Before: Russell SC DCJ Decision: Orders on the Motion filed on 11 March 2022 (1) The Notice of Motion filed on 11 March 2022 was dismissed at the hearing on 30 June 2022. (2) Order the defendant to pay the costs of Mr Shade of the Notice of Motion filed on 11 March 2022. (3) Decline to make a lump sum costs order. Orders on the Notice of Motion filed on 4 April 2022 (1) Set aside the Notice to Produce dated 28 March 2022 served by the defendant upon the plaintiff. (2) Appoint 26 August 2022 as the return date for a Notice to Produce to be served by the defendant upon the plaintiff, in terms similar to the Notice to Produce dated 28 March 2022. (3) Order that the costs of the Notice of Motion filed on 4 April 2022 be costs in the cause. Orders on the Notice of Motion filed on 16 June 2022 (1) Grant leave to the defendant to amend the Defence in a form similar to Annexure B to the Notice of Motion filed on 16 June 2022 subject to the discussion in this judgment of matters requiring amendment or clarification in the new pleading. (2) Grant leave to the defendant to file a Cross Claim in a form similar to Annexure A to the Notice of Motion filed on 16 June 2022, subject to the discussion in this judgment of matters requiring amendment or clarification in the new pleading. (3) Order the defendant to pay the costs of the plaintiff and of Mr Shade of the Notice of Motion filed on 16 June 2022. Catchwords: CIVIL PROCEDURE – application to set aside notice to produce – no valid date for production – whether notice to produce is too wide - a notice to produce is not too wide if it calls for documents relating to a particular document CIVIL PROCEDURE – application by for leave to file cross claim – whether conduct particularised was conduct which was misleading or deceptive - incomplete particulars in pleadings – heads of damage - delay in bringing forward proposed cross claim CIVIL PROCEDURE – application for leave to amend defence – whether fraud is pleaded in proposed amended defence - a party alleging agency must plead the origins, nature and scope of the authority of the agent – whether pleadings relating to the insurance representations bound to fail – whether proposed amended defence is an embarrassing pleading – court may give directions concerning mode of amendment COSTS – lump sum costs order Legislation Cited: Australian Consumer Law, ss 18, 236, 237, 243 Civil Procedure Act 2005 (NSW), s 64 Uniform Civil Procedure Rules 2005 (NSW), rr 14.14, 14.28, 19.5, 19.6, 34.1 Cases Cited: AJG Pty Ltd v Mobile Communications Systems Pty Ltd [2015] VSCA 231 Bitannia Pty Ltd v Parkline Constructions Pty Ltd (2006) 67 NSWLR 9 Willcocks v Croft [2021] NSWSC 1610 Williams v Toyota Motor Corporation Australia Ltd [2022] FCA 344 Category: Procedural rulings Parties: BMW Australia Finance Ltd (Plaintiff) Arthur Trigas (Defendant/Proposed Cross Claimant) Peter Shade (Proposed Cross Defendant) Representation: Counsel: M Gunning (Plaintiff) R Perla (Defendant) S Gray (Proposed Cross Defendant)